When the rule of law is under siege, is the judiciary going to resist and how? Patterns of resistances among judges in Poland, Hungary, and Romania.

Over the last decades, judicial institutions in Central and Eastern Europe have made the headlines in different parts of the world following governmental measures limiting their independence. This topic has been examined in different ways both in political science, law and in EU studies (Von Bogdandy 2014; Muller 2015; Pech and Scheppele 2017; Blokker 2019; Czarnota 2018; Bodnar 2021; Kelemen 2017; 2020; Closa 2018) as an illustration of autocratic legalism (Schepele 2018) or democratic backsliding (Bugaric and Ginsburg 2016), as an expression of the populist uprising (Bugaric and Kuhelj 2018; Sadurski 2019) or a counter-revolution (Zielonka 2018; 2019; Holmes and Krastev 2019). While this important body of research mainly focuses on governmental motivations and the role of party politics, little attention has been paid to forms of resistance(s) within the judiciary, when judicial independence is either under strain or undermined. Against this backdrop, we aim to contribute to this debate by addressing the following questions: how do judges resist reforms when not only their independence is undermined but also the democratic values of the political regimes are under strain? How do they defend judicial independence? To address this facet still underexplored in the literature, the paper examines judicial actors’ attitudes towards changes related to judicial independence in Poland, Hungary and Romania. We argue that the forms of resistance taken by the judiciary might be driven by ideological, self-interest and professional concerns. In other words, we argue that judges’ mobilization can be expressed as a function of the threat that reforms entail for: i) their ideational beliefs on liberal democracy, ii) judges’ professional/corporatists interests and patterns of career, iii) the professional ethos (e.g. tension with the judges’ role as “bouche de la loi”). To do so the paper investigates three national contexts, arguing that while the adoption of measures limiting the independence of the judiciary in Poland by the PiS government has “unified” judges in defending their cause and led to the emergence of a diffuse pan-European network, in the case of Romania the debate has polarized the field for reasons that the papers seek to elucidate. While in contrast, the degree of mobilisation has been lower in Hungary. To explain the motivations inspiring judges’ forms of resistance, the paper builds on an original survey on judicial independence distributed among Polish, Romanian, and Hungarian judges. The survey allows disentangling the ideological, self-interest and professional (ethos) drivers of judge’s resistance. Furthermore, the analysis is enriched by the use of social media and semi-structured interviews with judges from the three national contexts focusing on the timing of the mobilization and the patterns of the coalitions formed within and beyond the judiciary. Drawing theoretically on the concept of resistance (Madsen, Cebulak and Wiebusch 2018; Blokker 2020; Coman and Lacroiw 2007; Crespy and Verschueren 2009; Della Porta 2001) and an original set of data, this paper contributes to the literature on democratic backsliding in CEE by showing how one of the state’s power - the judiciary - resists the capturing strategies addressed by political elites.