Delineating Constitutional Court Strategy as a Response to Democratic Decay

In recent years, there has for obvious reasons been a renewed focus on the role that constitutional courts can play in threatened democracies. On the one hand, they have emerged as a target for anti-democratic governments that seek to remove obstacles to authoritarian populist rule (Bugaric and Ginsburg 2016; Sadurski 2018). On the other hand, their ability to resist has been lauded for potentially playing a vital role in the maintenance of democracy (Boese et al 2021). What remains true, however, is the difficulty of the situation they are placed in. Although in constitutional democracies, the constitutional court theoretically has the last word on matters of legal and constitutional interpretation, it is faced by a range of practical difficulties in enforcing its judgment in times of democratic crisis. Its hoped-for role as a bulwark against authoritarian transition is thus to a large extent dependent on its ability to marshal its limited resources against those of an anti-democratic government. This paper thus aims at developing a new methodology for understanding how constitutional courts might act when confronted by this situation. It is argued that constitutional courts operate strategically in such times of institutional and democratic uncertainty, using tactics such as judicial deferral (Issacharoff and Dixon 2016), while shoring up their legitimacy with other political actors and the people themselves. The paper will present a typology of strategy along a spectrum of passive enablement to assertive action and demonstrate the theoretical validity with relevant examples from Eastern Europe, Asia, South and North America. The typology will allow for better comparative discussion of political situations that differ greatly in their context, but face the similar challenge of democratic decay.