Fighting Back Against Rule of Law Backsliding: The Role of Poland’s Judges and Judges’ Associations

Recently, the European Union (EU) is said to be facing a ‘crisis of values,’ in which its core values, like the rule of law, are increasingly contested amongst some member states (Mos, 2020; Pech and Scheppele, 2017). This plays out in states like Poland, where the Law and Justice (PiS) government has been dismantling systems guaranteeing the rule of law since 2015 (Sadurski, 2019). Correspondingly, research on interventions to this rule of law backsliding has grown. However, it mostly focuses on the role of institutional actors (e.g. European Commission) and their use of tools like the ‘Article 7 Procedure’ or Annual Rule of Law Reports (Matthes, 2021). Little research acknowledges the role of non-institutional actors, like judges’ associations, despite these actors’ growing role in confronting rule of law backsliding (Christopoulou, 2022; Pedahzur, 2018). In Poland, this backsliding has triggered a strong response from these associations, despite their traditional disengagement from politicised issues (Matthes, 2022). In fact, several individual judges have engaged in acts of protest, and civil disobedience, often joining forces with judges' associations and other civil society organisations (CSOs) to address systemic threats to checks and balances, resist retributory demotion, and raise the alarm regarding other politically motivated retaliation from PiS-affiliated judges. This paper, therefore, addresses literature gaps by answering the following questions: How do Polish judges and judges’ associations respond to rule of law backsliding and what are the limitations of their responses? This paper is based on the repertoires of collective action of 19 Polish judges’ associations as well as the strategic interventions of 4 Polish judges, who have been extremely active in efforts to address rule of law backsliding and championing judicial independence. As the most autocratizing country in the world due to systemic attacks on the rule of law (Autocratization Turns Viral: Democracy Report 2021, 2021) and one in which CSOs have reacted considerably to threats to the rule of law (Dobler, 2020), Poland provides an excellent case study. Through this case study, the paper contributes to nascent research on the role of non-institutional actors in addressing rule of law backsliding. It also seeks to complement research in legal studies on judicial independence in times of rule of law backsliding, by providing a view informed by social movement studies. Results suggest a myriad of interventions by judges and judges’ associations, including sophisticated legal mobilisation strategies which engage national and supranational courts, however, significant domestic and supranational challenges persist.