Democracy is threatened by politicisation of constitutional courts. Unorthodox tactics are required to restore their role.

George Tyler

The election of authoritarians in Hungary, Poland and Turkey in recent times has been followed by a subversion of the democratic norm of checks and balances. The victors’ goal was to transform their democracies into de facto soft dictatorships by cementing enduring political power, drawing in part on practices from the fascist and Soviet eras. Critical to realising that goal has been exploiting temporary hefty legislative majorities to annul the independence of constitutional courts.

In Hungary Viktor Orbán eliminated the ability of his opponents to thwart the appointment of additional judicial nominees by his ruling Fidesz. In Poland Jaroslaw Kaczyński’s PiS enacted legislation empowering it to stack the court with loyalists. And in Turkey a referendum sponsored by Recep Tayyip Erdoğan granted his AK party authority to create and fill new judicial seats. (Led by the incarcerated Liviu Dragnea, steps by the PSD to weaken Romania’s judiciary are less advanced.)

In so suborning the rule of law, these ‘strongmen’ are however sharply at odds with most of Europe, where independent judiciaries are sacrosanct—seen as an essential element of the checks and balances which democratic governance, diffusing political power, requires. Supreme-court justices in the rich democracies are robustly non-political, consensus selections. For instance, Germany requires that two thirds of its parliamentarians approve new judges.

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Stacked with loyalists

The only major rich democracy with a politicised constitutional court—as in Hungary, Poland and Turkey—is the United States. Its Senate must confirm new judges. Mimicking the PiS’ 2015 decision to veto opposition judicial appointments, for instance, the Republican-majority Senate in 2016 rejected the Supreme Court nominee of the then president, Barack Obama. Instead, it packed the court the following year with a fellow Republican nominated by Obama’s successor, Donald Trump.

The ploy succeeded because only a simple majority (not a supermajority) of senators is required in the US to appoint Supreme Court justices. That has enabled Republican presidents in recent decades to stack it with political loyalists lacking judicial temperament—its subsequent rulings tarring it as the first politically partisan court in US history.

The Supreme Court’s antics have included allowing a slave-era artefact—the stunningly disproportional electoral college—to elevate losing Republican presidential candidates (George Bush in 2000 and Trump in 2016) over popular-vote winners. Political bribery by the wealthy and companies has effectively been decriminalised, with industrial-scale, pay-to-play corruption becoming the central feature of US electioneering and governance. And the discriminatory denial of voting rights, on the basis of political allegiance and race, has been empowered.

Ballot access

Voters in other rich democracies typically have equal access to the ballot, guaranteed at the national level. Not so in the US where the Supreme Court now allows state election officials to determine who can vote in national elections: officials in states such as contested Florida thus pick and choose which Florida residents are permitted to vote for the president.

That is why the US electoral system is judged an international embarrassment—of lower quality than its counterparts in Europe or even Brazil, on a par with India, Mexico, Panama and Colombia and little better than Hungary (see chart).

Source: Pippa Norris and Max Grömping, ‘Electoral Integrity Worldwide’, University of Sydney, May 2019

The Economist agrees, terming the US a ‘flawed democracy’, characterised by unequal voting rights, private-money electioneering, and unequal ballot access.



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Voting rights stripped

The narrow Republican majority on the court in recent decades has issued a rash of 5-4 decisions, such as Crawford v Marion County (2008) enabling officials in 25 states controlled by the Republican Party to strip voting rights from minority voters, who largely lean Democratic. The most common ploy is requiring a state-issued photo ID to vote, disproportionately affecting members of urban minorities, the elderly and the poor, many of whom do not have drivers’ licences.

Stripping voting rights is presented as a solution to fabricated ‘problems’, such as the chimera of double voting, but Republican officials in numerous states have reacted immediately to favourable court rulings. Within 24 hours of the Shelby County v Holder judgment in 2013, for instance, Texas Republicans enacted a strict voter ID law disenfranchising 600,000 disproportionately minority voters; some have subsequently had to travel 250 miles to get the necessary ID.

The Texas attorney general, Greg Abbott, admitted that a rushed redistricting law was ‘designed to increase the Republican Party’s electoral prospects at the expense of the Democrats’—crowing that the Supreme Court had made it ‘perfectly constitutional for a Republican-controlled legislature to make partisan districting decisions, even if there are incidental effects on minority voters who support Democratic candidates’. Little wonder that Texas has America’s worst voter participation.

Similar statutes stripped voting rights from Native Americans in North Dakota and members of minorities in Georgia, Mississippi, North Carolina, Tennessee and elsewhere. A regional judicial panel found the new North Carolina law was ‘imposing cures for problems that did not exist’, while disenfranchising African Americans ‘with almost surgical precision’.

These laws have succeeded in reducing the number of minority voters, greatly aiding Republicans. In North Carolina, for instance, the new restrictions caused an 8.9 per cent fall in black turnout in the 2016 election, even as white turnout rose. And a new law demanding strict new IDs from voters in Wisconsin accounted for Trump winning that key swing state in 2016 (by a margin of 22,748 votes): while white turnout fell a slight 2.2 per cent statewide, black turnout plunged by 18.9 per cent.

And it’s all legal … because the Supreme Court says so. In fact, these rulings render the plain law unrecognisable, validating sweeping violations of the US constitution where the last word on voting rights is in the 15th amendment: ‘The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.’

Restoration difficult

The packed courts of Hungary, Poland, Turkey and the US are one facet of political parties exploiting temporary electoral elevation to render it more difficult to derail them and their policies. Dislodging them at the ballot box and restoring checks and balances will be difficult, a challenge demanding innovative pushback and tactical flexibility by democracy advocates.

For example, Fidesz candidates were just defeated in Budapest and other cities by unprecedented unity candidates, jointly selected by parties ranging from the Eurosceptic centre-right Jobbik to the liberal Momentum and the Greens. The dominant EPP conservative political family in the European Parliament should seek other coalition members while expelling Fidesz, as a precursor to supporting biting sanctions.

The European Commission should build on its June success before the European Court of Justice (CJEU) with an aggressive financial and legal campaign to force the PiS to unpack the Polish Constitutional Tribunal. In light of the time-consuming and cumbersome CJEU process, however, a robust ratcheting down of EU subsidies to Hungary and Poland should be promptly initiated and corruption allegations regarding their distribution rigorously pursued.

An unorthodox approach is similarly required in the US, where unpacking the Supreme Court requires the Democrats when returned to power to add two or more new justices. Although rare, the number of US justices has been changed seven times since the country’s founding and is clearly itself constitutional. Indeed, one of those historic changes is a precise precedent for court expansion today: in July 1866, the abolitionist Congress of the assassinated president, Abraham Lincoln, changed the number of justices to attain a court majority sympathetic to the race-blind voting rights which became embodied in 1870 in the 15th amendment.

Unpacking these four courts is the priority but steps to prevent tit-for-tat recurrences by Fidesz, PiS, AKP and the Republicans are also appropriate. The experience in rich democracies is that non-political supreme courts are not a quixotic goal but the consequence of conscious policies jointly agreed. Laws unpacking these courts represent a sanguine opportunity to achieve an alignment with international norms—ending the appointment of ideologues and partisans.