Back to the Only Game in Town? The Judiciary as an Institutional Actor in Democratic Reclamation in Poland and Brazil

Under the recent wave of democratic erosion, we have seen courts and judges forced into challenging situations in countries such as Poland, Hungary, Israel and Brazil. Before apex courts are packed with government puppets, a still notionally democratically-minded bench must make tough decisions about whether and how to contest an anti-democratic government despite the judiciary’s lack of enforcement mechanisms (Barroso 2022). Yet if the court manages to retain a level of independence and survive this period of de-democratization, there is a chance of a democratic majority being elected that will be predicated on rolling back the legalistic changes that were enacted to subtly undermine democratic competition (Scheppele 2018). In Poland and Brazil in the past two years, a democratic majority won out over authoritarian populists in elections held under free but unfair conditions. Yet there remains a challenging task ahead. In order to reckon with the recent history of democratic erosion, legal accountability mechanisms will play a vital role in returning to the rule of law – both despite and because of the attacks on the rule of law during anti-democratic government. In this paper, I will firstly analyse how the constitutional context, the political tradition, and the specific situation can influence whatever action judiciaries are able to take. Secondly, I will examine what concrete actions have been taken in the initial period after election and how they functionally attempt to return to a constitutionally-bounded democratic polity. Lastly, I will confront issues of legitimacy from court-driven accountability when dealing with the political situation of authoritarian populism. Given the early timeline on these developments, this paper will form part of a larger project over the next couple of years looking at democratic reclamation in threatened democracies. Both Brail and Poland serve as interesting models for the interaction of judicial and government forces with authoritarian erosions of democracy not limited to rewriting of laws and constitutions, personnel changes in judiciary and media, and targeting of the opposition (cf Levitsky & Ziblatt 2018). As case studies, they work together to enrich our theoretical understanding, given the contextual difference in dynamics of court capture, the nature of the authoritarian drift, and the specific judicial reactions while under threat. This initial study is thus ideal for a discussion about the emerging research field that deals with the modern democratic recession, a potential "return to [democratic] growth", and how political science can develop its understanding of these trends.