While we have a highly-developed theoretical and empirical literature on judicial independence, there is less research on judicial backsliding: the process through which autocratic executives—often with legislative support—collapse the separation of powers. We seek to conceptualize judicial backsliding and theorize about how it occurs. We propose a general methodological approach to identifying episodes of backsliding that can be modified to suit the research interests of the community working on the judiciary in a comparative context. We find that constitutional review is a necessary condition of judicial backsliding and that it takes place not only as a result of executive actions but through collusion between executives and legislators.
Judicial institutions are important players in protecting democracy from authoritarian threats. However, in recent years, they have not had the best track record in doing so. Even when judicial institutions act, authoritarian governments have indefinitely delayed, found a workaround for the decisions, or outrightly denied enforcing the decisions. This has had a chilling effect on judicial institutions ability to safeguard democracy as they struggle to keep their legitimacy and credibility intact. To protect the same from being undermined, judicial institutions end up making use of avoidance cannons or passive virtues. This article proposes a radical idea to give more teeth to judicial institutions and empower them with enforcement agency to overcome their inability to fend of authoritarian threats. While this might seem like a step too far, this article will argue that such a measure is necessary not to render judicial institutions worthless in fighting against authoritarianism
In May 2015, the Brazilian Chamber of Deputies approved an amendment that raised the retirement age of the Supreme Court members from 70 to 75 years. Just four years later, there is a new proposal, known as “PEC do Pijama”, to revoke the former one. The paper assumes that changes in rules that affect the checks and balances system must be taken seriously. While in a hardball conjuncture these kinds of changes can be seen as questionable, in a context of constitutional crisis there could be a deliberate attack to compromise Court independence. The polish “Law on the Supreme Court”, and the Brazilian authoritarian past are taken into account to review the facts and norms and analyze them. In this paper, the author argues that the latter proposition violates constitutional stability, judicial independence, and magistracy guarantees, consisting in an autocratic move to consolidate power and pack the Court.