How Constitutional Courts Act Strategically in Threatened Democracies

Recently, there has been a renewed focus on the co-optation of constitutional or supreme courts by up-and-coming authoritarians (Bugaric and Ginsburg 2016; Sadurski 2018). A constitutional court should have the last word on matters of legal and constitutional interpretation and is thus both a bulwark against such authoritarian transition and a valuable target for would-be autocrats. In such situations, the ability of the court to survive and prevent democratic backsliding is vital, but they are hampered by a dependence on enforcement by the other branches. Constitutional courts must therefore develop strategies for moments of institutional and democratic uncertainty, such as judicial deferral (Issacharoff and Dixon 2016), while shoring up their legitimacy with other political actors and the people themselves. Understanding the strategies available to a constitutional court hoping to intervene and protect democracy is crucial in predicting a state’s ability to survive autocratisation.