Judicial Tenacity in the Shadow of Backsliding

This paper seeks to analyze a unique dataset of 49 countries that have experienced significant judicial backsliding, defined as the process through which autocratic executives reduce court independence and thus collapse the separation of powers, to determine whether existing literature on judicial independence as well as new literature on judicial backsliding informs how courts recover from significant attacks. Using the judicial backsliding database, the paper will explore first whether the extant literature on the correlates of judicial independence in developed and developing democracies as well as autocracies provides any purchase for explaining how courts rebound from backsliding. The court empowerment literature revolves around leaders’ concern that they will lose power. For Weingast, leaders or sovereigns agree to constraints on their power because they fear being deposed by citizens. For this to occur, however, citizens and even divided citizens, need to have reached a consensus regarding the appropriate limits on governmental powers and a willingness to defend those limits. For Ginsburg (2003), leaders empower courts also because they fear losing power, but here the motivation for leaders is to provide insurance or protection for them from an indepndent court once out of power. Additionally, legislators may prefer independent courts as a device for shifting the blame away from poor legislation approved in a low information environment (Whittington 2005; Rogers 2001). Courts with judicial review veto bad legislation and absolve legislators from being held responsible by voters for its unintended or negative consequences. Further, judicial independence may be favored by legislators when there is a certain degree of political competiveness in which an “an independent judiciary is a mechanism through which these political competitors can enforce mutual restraint” (Stephenson 2003: See Epperly 2017). Using the judicial backsliding data base, the paper also will explore whether reversing the processes leading to judicial backsliding explored in prior empirical work (with Stephan Haggard) will lead to a resurgence of the judiciary’s power. Haggard and Tiede suggest that judicial backsliding is more likely when populists are in power compared to other types of leaders and when legislative constraints on the executive weaken regardless of the type of leader. What remains unexplored is whether a turnover of leadership and an increase in legislative constraints will provide courts with an opening to regain their power. In exploring extant explanations related to judicial independence and backsliding as well as other factors, this paper will suggest what contexts courts require to recover from backsliding. The paper will provide a unique way of measuring judicial backsliding and rebound, explore factors that could lead to judicial rebound in a large N study and suggest an approach for choosing cases for further qualitative analysis.