Democracy Talk #9: What should liberal democrats do about the anti-liberal capture of the judiciary?

An independent judiciary has always been considered an important check on government power. Unsurprisingly, one key political strategy recently employed by anti-liberal-democratic parties has been to fill the highest courts with loyal judges. In countries such as Hungary, Poland and the US, these courts have become key targets in the transformation of the state. This presents a significant challenge for liberal democratic actors who oppose the anti-liberal political agenda. Once packed with loyalists of anti-liberal parties, constitutional courts can become powerful guardians of an anti-liberal political order — potentially for a long time after an anti-liberal government has been voted out of office, thus blocking the dismantling of an illiberal system. 

What can we do about it? Should liberal democrats move beyond a politics of compromise and adopt a more assertive approach, such as 'repacking' constitutional courts with liberal judges? Should liberal democrats act preemptively to protect the courts before the illiberal forces come to power? In some countries we saw strong pushback from judges (e.g. Brazil and Israel), while in others the judges were compliant (e.g. Hungary and the USA). What can we do to motivate judges to fight back when the independence of the judiciary is attacked? 

We will discuss these questions with Professor Fabio Wolkenstein, head of the Political Science Department at the University of Vienna.

In a recent policy paper he wrote for our Democratic Expeditions Series, titled “Remedying the Anti-Liberal Capture of Constitutional Courts”, he explores these dilemmas in greater depth. Drawing on the Polish case, he analyses the challenges liberal-democratic governments face when confronting constitutional courts packed with loyalists of anti-liberal parties. The paper discusses a range of potential responses — from removing illegitimately appointed judges and expanding the courts to weakening judicial review — and highlights the difficult trade-offs between restoring democracy and maintaining respect for the rule of law. Wolkenstein warns that there are no simple solutions: any reform risks appearing as “court-packing in reverse,” potentially undermining the very liberal-democratic norms it seeks to defend. Read the paper below.

About Fabio Wolkenstein

Fabio Wolkenstein is Associate Professor of Transformations of Democracy at the University of Vienna, Austria. He works on democratic theory, political representation, and the theory and history of political ideologies, with a special focus on conservatism and Christian democracy. He is the author of Rethinking Party Reform (Oxford University Press, 2019) and Political Representation as Communicative Practice (with Christopher Wratil, Cambridge University Press, 2025).