Cornered Courts: Democratic Decay and Unprecedented Judicial Action Beyond the Courtroom

When we think about courts as possible bulwarks against attacks on liberal democracy, we tend to think of their core role: upholding the law in the courtroom. However, in recent years judges worldwide – from Europe to the USA to India – have been pushed into taking virtually unprecedented action outside the courtroom. While these actions might be viewed by some as simply another step in the perceived judicialization of politics, in most cases they represent acts of desperation. In this talk I will map key instances of extra-judicial activity against attacks on liberal democracy, discuss their significance against canonical principles such as judicial impartiality and independence, place recent developments in historical context, make useful distinctions between strategic and merely ‘injudicious’ behaviour, and draw on my long experience of working with judiciaries and judicial associations worldwide to emphasize just how much of a departure these actions represent for many judiciaries.