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The Least Resilient Branch
Published online by Cambridge University Press: 30 June 2022
Populists in power behave as if courts were the most dangerous branch, and therefore usually make them the first target of populist assault. This dynamic is particularly pronounced in the case of constitutional courts, as the examples of Hungary and Poland show. In both those cases, constitutional courts were captured, and judicial review of constitutionality has been effectively rendered otiose. Beyond constitutional courts, common courts are also often subordinated to the executive, or see their powers marginalized. Judicial responses range from judicial resistance, to laying low, to "judicial populism" under which judges became active enablers of the executive will. All these strategies can be observed not only in Hungary and Poland, but also in India, Brazil and the Philippines.
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