Authoritarians vs. Courts: An Examination of the Judiciary
Written by Will Wigginton
Introduction
Judicial systems are one of the indispensable yet fragile institutions in democratic states. They serve to maintain law and order, uphold doctrines or constitutions, and symbolize the strength of democracy in its respective country. However, at the same time, they are also prone to violations by transgressors against democracy. When and if an authoritarian executive attempts to usurp control in a previously democratic state, they often look to the court system to be their first victim.
A major inspiration for this research is the recent presidential immunity ruling by the United States Supreme Court in the case, Trump v. United States, in which former President Donald Trump and his legal team argued that the president of the United States should benefit from absolute immunity from criminal prosecution. The Supreme Court, in a 6-3 decision split based on ideology, decided that “A former U.S. President has absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority, at least presumptive immunity from prosecution for all his official acts, and no immunity for unofficial acts.” (Trump v. United States 2024) Furthermore, the Court argued that defining what is and is not an “official” act for a president must be analyzed with a nuanced, case-by-case approach, (Ibid) setting a potentially dangerous standard for the future power of the executive branch in the
United States.
For these reasons, it’s important to understand how an executive can undermine the judiciary and keep hold over it, while also investigating how a judiciary can take power back from an executive after it has already relinquished it. To carry out this research, I will conduct a paired comparison between Poland and Turkey to determine the extent of democratic backsliding in the two countries.
The research on democratic backsliding is extensive, with conducted analyses on the reasons as to why it occurs resulting in a myriad of explanations and conclusions. With that said, it seems as if the aspect of democracies that is sometimes overlooked by scholars, making it inexplicably underrated in this context, are judiciaries in democratic systems. This is not to say that there aren’t scores of content to discuss regarding judicial systems–only that it is surprising how often this core tenant of democratic states can be somewhat underrated, with researchers tending to instead focus on topics such as populism, parisian polarization, the type of governmental system, etc. This means that the relationship between aspiring autocrats and their counterparts in the judiciary needs to be investigated on a deeper level, which is what this research aims to accomplish.
Explanation of the Paired Comparison and its Variables
This paper will be a paired comparison between the countries of Poland and Turkey. The study will contain a mixed-method approach, in which there is a qualitative segment discussing the story of democratic backsliding in each of the states and a quantitative section headlined by the V-Dem dataset. The variables that will be utilized from V-Dem’s dataset are judicial constraints on the executive, state-sponsored judicial reform, judicial purges, executive court-packing, government compliance with high court rulings, and the ability of the judiciary to carry out judicial review. I consider each of these variables to be necessary in order to find conclusive results that will not suffer from endogenous factors that could hamper my results. Lastly, each of the variables that will be utilized in the quantitative section are either dichotomous or ordinal, but have been converted to interval by the authors for the sake of consistency and clarity. (Pemstein et al 2024) This does not mean that the data are incorrect, only that some values might be outside the data ranges provided in the coding. For example: if a dichotomous variable (meaning it can only have two values, such as 0 and 1) has a score either in the negative or above 1, it will still have consistent and correct results in the model.
Hypothesis
Although there will be qualitative and quantitative sections within this paper, the overall hypotheses are the same. I will first argue that Poland, through the erosion of its judiciary and democratic processes by the Law and Justice Party (PiS) in the country, did face extreme democratic decline while the party was in power. However, I also argue that the judiciary within the country has seen a recent reparation of its democratic norms and institutions in the judiciary following the 2023 elections, which saw the Law and Justice Party face defeat. (Wójcik 2024, 2) Therefore, I argue that Poland’s judiciary has weakened greatly, but less than Turkey. I expect to find that Poland has seen that decrease in judicial strength, but has experienced a slight recovery. The only limit with this part of the hypothesis, which will likely be realized in the quantitative section of the paper, is the lack of substantial data to prove Poland’s judicial health has improved, as the new government has not been in power long enough for changes to have taken an observable effect.
In terms of Turkey, I argue that the country has faced extensive, continuous decline in the strength of the state’s judicial institutions from the Justice and Development Party (AKP) and President Recep Tayyip Erdoğan. Furthermore, the loss of power in the judiciary is much greater than Poland. I expect to find that Turkey has faced a decrease in the power of its judiciary without a recovery from the AKP and Erdoğan to its previous standing.
Theoretical Debates on the Executive-Judiciary Relationship in Turkey
The literature regarding the process of democratic backsliding in Turkey is extensive, with scholars employing and theorizing a multitude of methods in which Turkey’s Justice and Development Party (AKP) has, in tandem with President Recep Tayyip Erdoğan, undermined the judicial system in the country. The hypotheses that will be brought forth in this literature review highlight women’s rights as a pretext for attacking the judiciary; the AKP’s removal of the ability for Turkey’s multi-party system to properly function; the AKP’s original agenda to create a conservative, religiously-driven government, which dictated the attacks on the judiciary; court-packing measures implemented by the executive; and the country’s transition to a presidential system–have all been argued for reasons as to why Turkey has faced extreme democratic backsliding within the judiciary. All of these assertions will be discussed and measured individually in this section of the literature review.
Women’s Rights as a Method to Undermine Judicial Independence and Increase Religiosity
This portion of the literature begins with Yesim Arat’s work, in which she researched the attack on women’s rights by the AKP as a way to indirectly institute democratic backsliding. Arat found that when the AKP came into power, it leaned into the desire by many in the country to have a secular state, and subsequently passed seemingly liberal reform laws to equalize gender rights. (Arat 2022, 917) However, it ultimately ignored the laws that it helped pass in order to further the conservative, anti-feminist agenda it originally desired, leading to democratic backsliding. (Ibid) In terms of abusing the judiciary to institute backsliding, the AKP utilized its court-packed judiciary to have judges sympathetic to its cause to rule in favor of religious laws that would hinder women’s rights and give the party a hegemonic vise grip on the country. (Ibid) Overall, Arat found that the AKP instituted democratic backsliding by using women’s rights to enhance the theocratic agenda it desired, and capitalized on this by exploiting the judiciary through the restriction of political and civil rights. (935)
In terms of increasing religiosity, the AKP swerved around the secularist mentality of many in Turkey by appointing judges who were not only sympathetic to the party’s overall goals, but also to further the anti-secular, extremely religious desires of the AKP. (Oder 2021, 476) Another way this can be realized, that falls-in-line with both the women’s rights and religiosity elements discussed is the reformation of Turkey’s civil society, which Yavuz Cilliler found to be a major reason as to why the AKP reformed the judiciary, as the government was able to control and repress the populace in Turkey as a result of the 2010 court-packing. (Cilliler 2021, 534)
The AKP’s Obstruction of Turkey’s Multi-Party System and Presidential Transition
Scholars in this field argue that the AKP, on the back of unprecedented electoral success in Turkey, used the opportunity to effectively push out major competitors in the country’s government through coalition-building in tandem with the weaker parties. (Gumuscu 2020, 3) This strategy, in partnership with the transition of the country from a primarily parliamentary system to a presidential state, which was conducted through the judiciary in 2017, allowed for a slow but effective process of democratic backsliding. (3, 12) Oder agreed with this assertion, finding that the AKP’s political victories in the early 2010s set them up to use the judiciary to violate the state’s Constitution and enact backsliding measures (Oder 2021, 476), culminating in the constitutional amendments to switch to a presidential system in 2017, giving President Erdoğan and the AKP the ability to act as they pleased, especially in the judiciary.
Turkish Democratic Backsliding Through Judicial Reform
President Erdoğan and the AKP utilized multiple methods to decrease judicial independence and open the door for further backsliding. Multiple authors touch on this, highlighting the different aspects of the erosion of the Turkish court system. First, the AKP instituted reforms to both the judiciary and state security systems to further centralize the power of the party and the president. (Tansel 2018, 209) Furthermore, Meral Ugur-Cinar touched on the 2010 referendum allowing court packing by the federal government (Ugur-Cinar 2023, 448), which set the stage for the AKP and Erdoğan to consolidate power following the elections shortly thereafter. Dichio and Logvinenko capped this thought process off by scholars in the field by finding that the AKP’s court-packing measures allowed them to place party loyalists in places of judicial power, which, in turn, weakened democratic institutions in the country. (Dichio and Logvinenko 2024, 7) This was done to remove the judiciary as a challenger to the executive, therefore reducing overall checks on executive power and entrenching the AKP as the long-term ruling party. (Ibid)
Discussions Regarding the Executive-Judiciary Relationship in Poland
The literature regarding Poland is a bit less diverse relative to Turkey, but there is still much research conducted within the country regarding the relationship between the executive and judiciary. There aren’t as many theories as to why democratic backsliding has occurred within Poland in comparison with Turkey, as there was a distinct era of judicial reform within the country. Therefore, much of the literature focuses on the specific acts by the government that impacted the judiciary, and the long-term effects of them.
Reform to Poland’s Court System
Much of the literature for Poland revolves around changes made to Poland’s Constitutional Tribunal Court by the ruling Law and Justice Party (PiS) in the mid 2010s. Anna Adamska-Gallant, in her case study research, found that the PiS, while not holding the majority seats in Poland’s Parliament to change the Constitution, was still able to pack the Constitutional Tribunal with judges sympathetic to its cause, which allowed the party to enact democratic backsliding, (Adamska-Gallant 2022, 2) similar to the Turkish case. What’s most impressive about this feat by the PiS is that the party did not enact any constitutional amendments to reform any of the courts and institutions that they made changes to–which also included the state’s National Council of the Judiciary (the body responsible for judicial appointments), the Supreme Court, and other electoral organizations. (Sadurski 2020, 60) This led to Wojciech Sadurski considering Poland a stealth authoritarian regime, meaning that the Polish government utilized democratic values or institutions for nondemocratic purposes. (Ibid)
One major note that is sometimes underrated within the literature, but was detailed by Duncan and Macy, is the explicit change made to the National Council of the Judiciary that the authors found had a major impact on judicial independence in Poland. Originally, the Council of the Judiciary had a series of judicial assemblies appoint the judges to serve on the Council. (Duncan and Macy 2020, 42) However, in the middle of Poland’s democratic backsliding process, its President, Andrzej Duda, moved the ability to appoint judges to the Council from the judicial assemblies over to the Sejm, (Ibid) which is the lower body of Poland’s Parliament, but the most powerful institution between it and the Senate in the country’s bicameral legislature. (Sejm of the Republic of Poland) Since judicial appointments were now effectively in the hands of the Law and Justice Party and, by extension, President Duda, Duncan and Macy found that it allowed for further transgressions to occur to every judicial body in Poland.
One last point of discussion for Poland’s judicial reforms has led to the indirect fallout in the strength of the judiciary as a result of the changes. Michael Bernhard aimed to investigate ancillary ways the court alterations impacted other aspects of Poland’s government and society. He found that, following the changes made to the Council of the Judiciary, that the Polish government used its newfound power with the courts to wield it as a tool against other institutions, like Poland’s state media, not only furthering the process of democratic backsliding in the country, but creating a full-on Law and Justice Party propaganda machine. (Bernhard 2021, 604)
Paired Comparison: Poland and Turkey
Prior to the quantitative section of the case study, it is necessary to provide context surrounding the stories of democratic backsliding in Turkey and Poland, along with the current status of the countries’ judicial institutions.. To do this effectively, I will rely on Freedom House’s estimation of the health of countries’ judicial entities after going over the particular sequence of events in each country. One important note: Freedom House measures different variables of stability within governments on a four-point scale–meaning that a score of four indicates extreme strength in that particular field, while a 0 is as weak of a score that a portion of the particular country can receive.
The Process of Democratic Backsliding in Poland
Democratic backsliding in Poland occurred swiftly, with many of the country’s judicial institutions being harmed in the process. The reemergence of the Law and Justice Party (PiS) in Poland in 2015 began the operation of democratic backsliding in the country. (Duncan and Macy 2020, 41) Following the election of the PiS and President Duda, the backsliding measures to the judiciary began in short order, starting with a constitutional crisis regarding the makeup of the Constitutional Tribunal and Supreme Court. (Krotoszyński 2019, 22) The judicial institution that was arguably damaged the most out of them all, however, was the National Council of the Judiciary. Originally, this body was intended to oversee all types of judicial appointments. (Sadurski 2020, 60) However, it was reformed by Duda and the PiS to have judicial appointments instead sent to parliament, where the PiS had a majority. (Ibid) This created a trickle-down effect that allowed for court packing of sympathetic judges by the Law and Justice Party. An example of this in practice is the Supreme Court of Poland, which was also reworked to allow for new judges to be placed on the bench, (Ibid) and would be conducted through parliament.
Beyond court packing, it has been shown that leaders in Poland purged judges that they felt would not adhere to the Law and Justice Party’s agenda–further paving the way for institutional breakdown and democratic backsliding. (Šipulová and Kosař 2024, 1) The Chairman of the PiS, Jarosław Kaczyński, aimed to purge courts in Poland to take over the Supreme Court on the basis of the judicial system’s supposed politicization. (Mariusz Jałoszewski 2020) This process of vast judicial purges likely would have been realized if the PiS won its reelection campaign in 2023, as the Party would have undertaken further Constitutional reform to accomplish its goals, violating its central document and European Law. (Mariusz Jałoszewski 2023)
Another major subject of democratic backsliding through the judiciary in Poland was the resistance to European Court rulings by the executive. Institutions such as the European Court of Human Rights (ECHR) and Court of Justice of the European Union (CJEU) attempted to reel in Poland’s executive by ruling that the state had undermined judicial independence in the country, which was argued to have begun in 2015 with reforms made to the Constitutional Tribunal through forced court packing. (Adamska-Gallant 2022, 2) In response to this, Poland’s government ignored these rulings and ordered the Constitutional Tribunal to deem the European Convention on Human Rights as unconstitutional in the country. (3) Essentially, any time after this that a European Court ruled against the Polish government, the executive simply continued to have the Constitutional Tribunal consider that specific ruling unconstitutional. (Ibid) Therefore, the judiciary had no ability to constrain the executive, nor the power to regain independence from the PiS.
Lastly, The Polish government, during the period of 2015-2023, ignored a myriad of rulings from its own Constitutional Tribunal that were set prior to the emergence of the Law and Justice Party. (Pech 2021, 5) Along with that, there were several laws implemented by the government that were not lawful, according to Poland’s Constitution and the overall European Courts, such as the Muzzle Law, which was essentially a way to prevent judges from establishing rulings that grant the right to a fair trial and denies guaranteed rights provided by European Union treaties. (Adamska-Gallant 2022, 7)
Although the PiS and Duda were able to quickly erode judicial institutions in Poland, the Party’s majority only lasted from 2015-2023. (Anna Wójcik 2024) This allowed for extreme democratic backsliding in the country, but not enough to prevent the judiciary from beginning the recovery process. Since the establishment of Poland’s new government in December of 2023, progress has been consistent, but slow. (Ibid) However, plans are in place to once again work together with the European Courts–a process that has started with the EU removing the blocking of funds to Poland on the grounds of eradicating judicial independence; repair the National Council of the Judiciary–returning it to being the judicial appointment body; and positively reform the entire court system to better represent democratic principles, which has begun through the Constitutional Tribunal. (2, 3, 4, 5, 6) All of these developments highlight the conclusion that Poland’s judiciary has started to regain power from the executive. As more progress is made, Poland can make the climb back to its previous status as a developing democracy.
Freedom House’s Measurement of Poland in 2024
The first variable to discuss from Freedom House is the independence of Poland’s judiciary, which the organization scored a 1/4, (Poland: Freedom in the World 2024) meaning there is little power that the state’s courts have over the executive. Although there have been some shifts in a positive direction following the ousting of the Law and Justice Party as the majority coalition in Parliament, the authors here argue that judges within the country still face extreme conditions (scrutiny, suspension, transfer to other courts, etc); furthermore, the Constitutional Tribunal and Supreme Court are still in disarray, as these institutions have ongoing disputes with several European Union Courts over the independence of the country’s judiciary. (Ibid) These conclusions would lead us to believe that the hypothesis that Poland’s judiciary has recovered to be a bit premature.
The other three variables will be compiled into one section here, as they have much less to do with the relationship between the judiciary and executive as the first section, but are still relevant to the judiciary. The latter three topics concern the stability of due process under the law, protection from the use of illegitimate force, and equal treatment under the law. (Ibid) For these variables, they received scores of 3/4, 4/4, and 2/4, respectively. (Ibid) This indicates a couple of trends: first, that the overall health of the judicial system in Poland is relatively stable, as its residents are not subject to the violation of rights. However, the score attributed to the equal protection under the law variable sheds light on the mistreatment of the LGBT+ population, according to the authors. (Ibid) Second, the extremely low score given to the judicial independence of the country relative to other factors in the subcategory can help to draw the conclusion that the judicial branch still has much ground to gain back from the executive branch within the country. Although the Law and Justice Party is no longer a looming and dominant force within the country, President Duda is still in power, meaning it will take time to repair the wounds to the independence of judicial institutions within the country.
The Process of Democratic Backsliding in Turkey
The timeline of Turkey’s democratic backsliding is slower, yet more consistent than its Polish counterpart. Although the Justice and Development Part (AKP) came to power in 2002, with Erdoğan as Prime Minister at the time, (Arat 2022, 921) the party still put on the facade that it was a secular, democratic regime until around 2010. (912) Beyond simply appearing as a political party and executive following the desires of the public for secular democracy, the AKP during its early years instituted constitutional reforms that would allow them to possibly be accepted into the European Union, and advancements of civil liberties. (Oder 2021, 475) These improvements, as discussed by both Arat and Oder, focused on equating gender rights, eliminating the death penalty, and implemented many seemingly positive changes to the Constitutional Court and Council of Judges and Prosecutors. (Arat, 913; Oder, 475)
Once the guise of democratization was dropped and democratic backsliding ensued, so did the erosion of Turkey’s judiciary, as its ability to reign in executive power was continuously reduced. (Gumuscu 2020, 15) This process gained momentum following the 2010 constitutional referendum that paved the way for extreme judicial reform, allowing the executive to gain firm control of the judiciary, eventually carrying out court packing of sympathetic judges in many judicial institutions, like the Constitutional Court, the Court of Appeals, and the Council of Judges and Prosecutors. (Ibid) This was conducted for the purpose of centralizing executive authority to the AKP through Erdoğan. (Tansel 2018, 209) This was the final straw for judicial independence in the country, as the AKP, through its court packing measures, were able to mitigate checks on the executive and eradicate the judiciary’s individuality. (Dichio and Logvinenko 2024, 7) An example of Erdoğan’s power over the judiciary in action was and is his disregard for court rulings that he disagrees with, which will be further fleshed out in the quantitative section. Lastly, the destruction of democratic norms occurred relatively quickly in Turkey, as the country went from being considered an electoral democracy in 2010 to an authoritarian state by 2014 (Haggard and Kaufman 2021, 28)
The process of democratic backsliding in the judiciary culminated with Turkey’s transition into a presidential system of government, headed by Erdoğan of the AKP, (Cilliler 2021, 532) which has allowed for Erdoğan to remain in an authoritative position for twenty years. (Haggard and Kaufman 2021, 34) By 2018, Turkey was considered by Freedom House as “not free” as a result of the constitutional referendum that included sweeping changes to many sectors of Turkey’s government–including the judiciary. (Arat 2022, 913)
Although democratic backsliding in Turkey has greatly diminished the power of the judiciary within the country, it may have a chance for revival in the distant future. Following the 2024 elections in Turkey, the AKP lost much of its majoritarian power, especially with electoral defeats in the large cities of Istanbul and Ankara. (Plesca and Cozma 2024) Furthermore, based on the current makeup of the Turkish Constitution, Erdoğan is in his final presidential term, and faces substantial competition from the Mayor of Istanbul, Ekrem Imamoglu. (Ibid) If Erdoğan is unable to reform the Constitution to allow for another term(s) as President, and the AKP continues to give up ground in parliament, then Turkey can potentially reverse the democratic backsliding that has plagued the country for nearly 15 years.
Freedom House’s Measurement of Turkey in 2024
According to the Freedom House authors, the situation in Turkey faces a much darker outlook than its Polish counterpart. Similar to Poland, Turkey also received a score 1/4 in the judicial independence section. (Turkey: Freedom in the World 2024) The reasons Turkey received such a low score stems from concerns about court packing and the move to a presidential system in 2018, which allowed for President Erdoğan to manipulate the country’s Board of Judges and Prosecutors, a body that used to explicitly oversee judicial appointments, to now be appointed by parliament and the president, which fall right into his and the AKP’s hands. (Ibid) This is a similar but more egregious situation than the one found in Poland, as the AKP has had a much longer reign of power in Turkey than the PiS in Poland, meaning that the democratic backsliding norms are more entrenched into the Turkish government. This is shown in practice by the authors through the other rule of law variables, which Poland scored relatively well in. Turkey, on the other hand, was graded about as poorly as possible, receiving a 0/4 in the due process section; a 1/4 in the protection from the use of illegitimate force category; and a 1/4 in the equal treatment under the law variable. (Ibid)
These scores highlight the difference in democratic backsliding between the two countries. Although Poland did experience a sharp decline in the power of its judiciary, it wasn’t nearly as damaging as the Turkish situation. Moreover, since the Law and Justice Party has been ousted in Poland, there appears to be a light at the end of the tunnel, as repairs are underway to Poland’s institutions. However, in Turkey, the AKP and Erdoğan are still in power, albeit shakily following the March elections. (Makovsky 2024) Until that changes, Poland is an example of a judiciary fighting–and sometimes succeeding in, taking back power from the executive, while Turkey is a case of the executive having firm control of the judiciary.
Judicial Constraints on the Executive in Poland and Turkey
As mentioned at the beginning of this paper, there are several variables that will be utilized from the V-Dem dataset for the quantitative portion of the case analyses. We’ll begin with judicial restraints on the executive–that is, how much respect does the executive give to the state’s constitution, comply with court rulings, and allow the courts to act independently? Remember, if the values seem a bit inconsistent or off, that comes as a result of the model changing variable types in the data collection process. All of the results presented from V-Dem’s dataset are correct.
