Under Pressure: Building Judicial Resistance to Political Inference

Abstract

Recent constitutional reforms targeting designs of domestic judiciaries have reminded us both how important and how fragile judicial independence is. Current episodes from Hungary and Poland have shown that domestic courts are an easy target for governments enjoying large parliamentary majorities. Moreover, we have learnt that political leaders implement a plethora of formal and informal methods of interference, skilfully using the pretence of legal language. Courts, however, are not completely helpless observers of court-curbing: far from it. Depending on the aims and formality of political inferences, courts can implement various ways of retaliating aimed at preventing, averting, or punishing the inferences of executives. While the major part of research focuses on institutional design safeguarding judicial independence, this chapter analyses resistance strategies – reactions implemented by courts facing political inference. It identifies four categories of judicial resistance and, using an example of Central European countries, demonstrates that their implementation depends on the formality and motives with which executives aim to capture the courts.