Is Resistance Futile? Countering Democratic Decay the Judicial Way

With democratic decay advancing around the globe, some scholars put their faith in courts’ ability to save constitutional democracy. Yet, others doubt the judicial capacity to achieve this. Some even claim that courts exacerbate the situation since over-legalizing deep socio-political issues is a part of the problem. This paper reviews the recent scholarship, categorizes the existing approaches and identifies the gaps. It shows that the debate spans across the spectrum of normative recommendations, from avoidance to activism, which impairs the guidance it could otherwise provide. To better understand the capacities and limits of judicial countering of democratic decay, I argue, we need 1) to acknowledge the pre-existing and novel challenges to the judicial capacity to induce policy change, 2) the plurality of pathways and causes of democratic decay, and, subsequently, 3) do more research on micro-mechanisms of judicial countering and its effects across countries, contexts and issues.