Since 2015, Poland’s ruling Law and Justice party has engaged in a systematic effort to remake their courts in the name of unrooting corruption and promoting the people’s interest. Many countries claim to use judiciary reform to stabilize democracy. In the United States, the death of Supreme Court Justice Ruth Bader Ginsberg unleashed a torrent of proposals that would fundamentally reform the court for generations. While the Polish attempts to alter their judiciary are more brazen and overtly menacing than those occurring in the United States, a variety of analogous moments elucidate possible American futures. From the study of Polish judiciary reforms enacted in the name of national strengthening arise three major lessons about the interplay between these reforms and democratic erosion. These lessons can help one assess whether American judicial reforms are harbingers of democratic strengthening or erosion. First, increasingly personalized rhetoric indicates calls for reform are based not in strengthening democracy, but in eroding it. Second, bad-faith reformers consolidate their power through changes that impose increased pressure for judicial loyalty; Finally, outcries about a country’s core identity resting upon judicial reform often preclude democratic erosion.
In Poland, those inside the Ministry of Justice engage in a smear campaign against individual judges. Through a coordinated effort of vigilante online harassment, state-run media stories, and political legislation, the Law and Justice Party seeks to inject narratives of supposed judicial malpractice into public discourse. This tactic allows for the Law and Justice Party to make their arguments for judicial reform about personal malfeasance and not dramatic institutional change. In cases where proposed reforms exacerbate democratic erosion, arguments often turn personal and highly political because those pursuing malicious reform attempt to hide the damage they could inflict upon democracy behind stories of personal deviance. By invoking the citizenry’s feelings about moral correctness reformers mask the erosion of judicial integrity and democracy. Reforms that actually strengthen democracy don’t need to mask themselves in personal or salacious narratives. Thus, cases where debate becomes personalized, such as in Poland, should raise the alarm bells that the proposed reforms erode democracy instead of strengthening it.
While the United States is not experiencing a public smear campaign against judicial nominees, there are signs that nominations and appointments are becoming increasingly driven by personal politics. When the senate confirmed Ruth Bader Ginsburg she received 93 votes supporting her nomination and only 3 opposing it. The most recent Justice, Brett Kavanaugh, received 50 votes supporting his nomination and 48 opposing it. Confirmations became steadily more contentious between Ginsburg’s nomination and Kavanaugh’s. If one takes into account the subject of the confirmation hearings, it becomes evident how much they now revolve around issues of personal morality and cultural identity as opposed to jurisprudence. Most dramatically, most of Kavanaugh’s confirmation revolved around sexual harassment allegations and subsequent implications about his character. The increasingly personal tenor of judicial confirmations itself does not indicate democratic erosion, but it does indicate the United States is trending towards an environment where democratic erosion thrives.
The second lesson Poland’s failing judiciary exemplifies is the fact that erosion can exist when judges face pressure to prioritize the ruling party’s wellbeing over equal application of the law. In How Democracies Die, Steven Levitsky and Daniel Ziblatt explain how in 2015 the Law and Justice Party refused to swear in three judges to the Constitutional Tribunal – Poland’s highest constitutional authority – who were approved by the outgoing parliament, and instead placed five of their own justice on the tribunal. Such an act blurred the boundaries between the judiciary and those who appoint them. As the process to change the courts – whether through nomination or reform – becomes more personal and public, the connection between those in charge of putting judges on benches and the judges themselves grows, as does the threat of democratic erosion.
When the judiciary compromises its loyalty, reforms increasingly aim to protect the economic, political, and personal interests of the reformers. Oftentimes these changes acutely target advancing electoral outcomes or extending the ability of those in power to stay in power. In their paper “How to Lose a Constitutional Democracy” Aziz Huq and Tom Ginsburg explain how selective judicial appointments and a more active court “could produce a judiciary that is decidedly part of the governing coalition, rather than a check upon it.” In such instances where the courts and those who build them become intertwined, democracy starts to fail. Thus, fears that the judiciary will become loyal to those who nominated and confirmed them are well founded. In the United States President Trump publicly acknowledged that he believes the 2020 election results will be adjudicated by the courts. He also postulated that Judge Amy Coney Barrett must be confirmed by the election because this would allow her to participate in such a case. Such a statement aligns itself with the school of thought that espouses the dangerous belief that judges are expected to politically aid those who nominate them. Such a connection clearly demonstrates democratic erosion.
The final lesson of Poland’s judiciary relates to the type of rhetoric used in public debates surrounding proposed reform. The Law and Justice Party claims that their dismantling of Poland’s court system is actually an effort to root out communist and corrupt judges. In an interview with NPR, Marek Ast, who chairs Poland’s justice and human rights committee in parliament, stated, “Until now in Poland, we’ve had a ‘judgeocracy’”. This notion of a Poland controlled by an unrepresentative judiciary impacts residents viscerally. It shows how the Law and Justice party characterizes their fights in the courts as representative of a battle over the control of Poland’s identity. When speaking about removing judges, President Duda made this point even more clearly when he stated, “We must cleanse our Polish home, so that it will be clean, orderly, and beautiful.” The fight in the courts becomes a fight for the soul of the country.
By elevating the stakes of judicial reform so highly, it becomes easier to claim the necessity of sweeping reform. Some Democratic representatives in the United States currently call for expanding the Supreme Court if Judge Barrett becomes Justice Barrett. They use the precedent set by senate Republicans in 2016, national polling showing Americans support waiting until after the election to fill the vacancy, and the fact that Barrett was nominated by a president who lost the popular vote and would be confirmed by Republican senators who represents 15 million fewer people than Democratic senators, to argue the necessity of court packing. By utilizing these points, Democrats argue a Barrett confirmation threatens the very core of the American ethos, one of representation. Thus, they portray their argument to expand as one of saving an integral part of the country. However, this argument sets a dangerous precedent. In his paper “Stealth Authoritarianism,” Ozan Varol marks the packing of the courts as a sign of democratic erosion. In practice, this erosion manifests itself in the scenario where anytime a party comes into power with an ideologically opposed court they simply invoke intense rhetoric and expand the courts. Such a scenario is possible. Such a scenario is a threat to American democracy.
As tensions surrounding the United States judicial system grow, we must be careful about calls to reform the courts in the name of stabilizing democracy. The fights of judicial independence and legitimacy in Poland might be extreme in comparison to the current American discourse, but they teach us much about the dangers of judicial reform. The United States must be mindful of increasingly personalized judicial rhetoric, narrowly advantageous proposals of loyalty, and ideological arguments that claim the core identity of the country rests in judicial reform. Such events might mark the collapse of their great experiment.
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