Born Populist: The Trump Administration, the Courts and the Constitution of the United States

Louis Hartz famously declared that American liberalism was different from European’s because Americans were “born” (liberal) without having to become so. European liberals needed a strong state while American liberals were more inclined to treat liberty as freedom from government. That the US was born populist may explain some differences between the ways in which the Trump Administration and other right-wing populist governments have sought to implement a similar agenda. Right-wing populists in countries as diverse as Venezuela, Hungary, Poland, Turkey and Israel have had to tear down a regime with some degree of commitment to what I have called thickened progressive cosmopolitan constitutional democracy. The Trump Administration, by comparison, does not confront a constitution, culture or judiciary with nearly the same degree of commitment to such values. The result is that goals other populists have sought through radical transformation have been achieved by minor tweaks in the US

Against Constitutional Chicanery: The Rule of Law Strikes Back

Constitutional chicanery – also known as constitutional backsliding, abusive or populist constitutionalism – is an elusive phenomenon: its architects (whether populist or illiberal, still, usually democratically elected) use language and solutions familiar from ’constitutions with constitutionalism’ in order to consciously remove formal constraints from the exercise of political powers.

In recent years courts in several jurisdictions (the U.S., the U.K. and the Council of Europe) made attempts to capture constitutional chicanery. While these may be exceptional, the judicial exercise of powers exhibited therein is not only compatible with the rule of law, but is an essential element of its aspirational dimension. The paper hopes to encourage constitutional actors to take inspiration from courts and bring the aspirational dimension of the rule of law to life in order to counter constitutional chicanery.

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 naturally tend to think of their core role: upholding the Constitution and law in the courtroom. However, in recent years judges worldwide 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.

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.

Discussant

Rivka Weill's comments will be based on “The Strategic Common Law Court of Aharon Barak and its Aftermath: On Judicially-Led Constitutional Revolutions and Democratic Backsliding”, available on SSRN.