ARE (JUDICIAL) INSTITUTIONS WORKING? An evolutionary approach to the role of constitutional courts in preventing democratic decay

This paper develops a theoretical framework that draws insights from evolutionary theory. It examines the institutional construction of constitutional courts through their symbiotic relationship with other actors in the political ecosystem. We assess limits of the influential idea that strong institutions—particularly courts—can prevent democratic decay by themselves regardless of contextual factors.

We claim that this particular type of institutional fetishism overstates the autonomy of political institutions and muddles our understanding of broader social and political phenomena. Our contextual approach questions how institutional devices make judicial bodies not only work in a more trivial sense but also be effective in preventing democratic decay.

Drawing from the recent Brazilian case, we reconsider arguments that (i) overstate the power of constitutional courts in preserving democracy, or (ii) understate the relevance of recent court-curbing episodes.