Increasing Democratic Resilience Through Law? Apex Courts and the ‘Militancy Conundrum’

How and why do apex courts matter in shaping the legal regime of regulation of rights in the name of democracy protection? Conventional answers distinguish between ‘militant’ and ‘tolerant’ approaches but, aside from a few theoretical accounts, miss the wider variety of positions available and the ways how courts are essential in choosing among them. Using examples from apex courts in Czechia, Hungary, and Slovakia, all systems facing or undergoing democratic deconsolidation, this paper develops a more elaborate conceptualization of judicial approaches to protection of democracy. The resulting typology improves the understanding of the diverse responses of apex courts to the challengers of democracy. It also serves as a starting point for understanding the apex court-generated conditions that affect the capacity of antidemocratic actors, if they gain power, to ‘abuse’ the very same court for the purpose of cementing their position in the political system.