Courts in many parts of the world are suffering from “democratic erosion” because of a growing tendency to ignore basic precepts of fairness and judicial independence, warns a forthcoming article in the University of California-Davis Law Review.
The article, entitled Abusive Judicial Review: Courts Against Democracy, cites recent actions by governments in Hungary, Turkey, and Venezuela as examples of efforts to undermine judicial independence—but it also points out that the U.S. is vulnerable.
In the article, authors David Landau of the Florida State University College of Law and Rosalind Dixon of the University of New South Wales Faculty of Law say “abusive judicial review” can happen when authorities change or completely replace existing constitutional restrictions, such as those on term limits, allowing themselves or others to remain in power “indefinitely.”
For example, in 2017, the government of Turkish leader Recep Tayyip Erdoğan used constitutional amendments to “strengthen presidential power.” They quoted two Turkish journalists from Verfassungsblog who said the amendments eroded the country’s judicial system, perpetuating “executive dominance” and “a sustainable state of emergency in which Turkey will be governed mostly by executive orders.’”
In other, even more extreme, examples of a grab for power, Venezuela, Ecuador, and Hungry have recently entirely scrapped their constitutions to “perpetuate the power of the regime,” according to Brookings.edu.
The constitution enacted by the late Venezuelan strongman Hugo Chavez in 1999 concluded, “The leader that controlled [Venezuela] would be superior to any pre-existing law or institution.”
His constitution is still in force today.
Another form of judicial abuse occurs when those in power seek to change laws governing the “regulation and oversight of the media.”
Singapore is notorious for imposing limitations on “freedom of speech and assembly,” but its restrictions don’t come close to what Kim Jong-Un, the “Dear Leader” of North Korea, imposes.
“North Koreans can still be sent to a concentration camp for viewing, reading or listening to content provided by a media outlet based outside the country,” which only further demonstrates dictator Kim Jong-Un’s abuse of power, the website says.
Ozan O. Varol, in his study of Stealth Authoritarianism, published in the Iowa Law Review and cited in Landau and Dixon’s paper, noted that courts can use existing laws regarding defamation and money laundering “in selective ways to punish opposition to the regime.”
The tasks that the judicial system and judges separately carry out to undermine democracy take two forms, according to Landau and Dixon.
The first form of “abusive judicial review” is considered “weak” when those in power uphold legislation that undermines citizens’ ability to participate in democratic activities, like voting.
“Strong” abusive judicial review occurs when judges overhaul the system, and as mentioned above, remove term limits and nullify the power of the opposition.
The U.S. is fertile ground for abusive judicial review, according to Landau and Dixon.
Historians argue that then-President Franklin D. Roosevelt’s efforts to appoint more justices to the Supreme Court who would rule in favor of his Depression-era economic initiatives in 1937 was an early example. The so-called “court packing” plan proved unnecessary after several justices announced they were now leaning in support of FDR.
More recently, the 2018 ruling in Trump v. Hawaii which upheld the administration’s Muslim travel ban, has been “criticized as an abdication to a president with authoritarian leanings,” according to Landau and Dixon.
They also argue that there are at least hints of the “weak” form of abusive judicial review in the Supreme Court’s consistent refusal to hear “partisan gerrymandering claims and related issues,” most recently in Gill v. Whitford. Other glimpses of this form of abuse can be seen in the increasing rates of defamation suits against political opponents and media outlets.
Editor’s Note: In a major decision Monday, the court ruled that the Republican-led Virginia House of Delegates did not have the legal right to challenge a lower court opinion that struck several district maps they had drawn as an unconstitutional racial gerrymander.
According to the paper, the U.S. remains protected by a checks and balances system that is aimed at preventing any one branch of government from abusing its authority.
So, while American democracy has less to fear from abuses of judicial power, “We should not take for granted this will always be true,” write the authors.
The full paper can be downloaded here.
Additional Reading: Judges Influenced by Fox News Give Harsher Sentences: Paper
This summary was prepared by TCR news intern Andrea Cipriano.
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