Law versus Democracy: Why Courts Defend—or Undermine—Democracy

Abstract

This dissertation examines why courts defend—or instead undermine—democracy. Because democratic backsliding increasingly occurs through legal means, courts are central actors. Elected political leaders have clashed with the judiciary in numerous cases of democratic erosion, from Brazil, Israel, and Mexico to Hungary, India, Poland, Turkey, and the United States. Conventional wisdom holds that when the judiciary is independent of the elected government, courts act as “bulwarks” against democratic backsliding. This dissertation argues instead that courts frequently undermine democracy. Even when courts are independent of the elected government, the judiciary’s behavior has subverted democracy in diverse ways. Judges globally have enabled executive power grabs, undermined free and fair elections, restricted citizens’ rights, empowered unelected elites, and excessively constrained elected officials’ ability to govern. This dissertation investigates two questions at the heart of contemporary struggles over democracy. First, why does judicial behavior defend democracy—or subvert it instead? The answer, I argue, lies in how judges are selected. In contrast to influential legal, strategic, and attitudinal models of judicial behavior, I develop an institutional model. I theorize that when judicial selection institutions concentrate power, they enable court capture and democracy-subverting judicial behavior. Different types of actors—from political parties and ethnic groups to militaries and unelected elites—can capture the courts, leading to distinct types of democracy-subverting judicial behavior. Paradoxically, when courts are captured by actors other than the elected government, judicial behavior may be independent of the government but subversive of democracy. Conversely, when judicial selection institutions disperse power (e.g., through a super-majority requirement for selecting judges), they mitigate court capture and enable democracy-enhancing judicial behavior. Second, when and why does judicial independence survive government attacks? I theorize that judicial allies, or actors outside the judiciary who support certain court decisions, enable judicial independence from the government. I show that mobilization by judicial allies often generates positive feedback effects, as judicial allies enable courageous anti-government court decisions, which in turn energize further mobilization by judicial allies. Whereas research on “judicial support networks” emphasizes how the judiciary’s supporters foster prodemocratic court decisions, I underscore that judicial allies may also enable democracy-subverting judicial behavior. The dissertation shows the empirical reach of this theory by analyzing variation in judicial behavior and judicial independence in Turkey under Recep Tayyip Erdoğan and Israel under Benjamin Netanyahu, two cases in which elected executives have challenged the courts. These cases are valuable for demonstrating the theory because they vary markedly on the two independent variables: judicial selection institutions and the character of judicial allies. To provide evidence for the theory in Turkey, I analyze an original, comprehensive dataset of over 5,000 decisions by Turkey’s Constitutional Court, text-as-data from these decisions using a keyword-assisted topic model (keyATM), and qualitative interviews with high-ranking judges and lawyers. To demonstrate the theory in Israel, I analyze quantitative data on over 16,000 panel decisions by Israel’s Supreme Court and qualitative interviews with high-ranking judges, lawyers, and politicians. To test the theory’s generalizability beyond Turkey and Israel, I collect novel, cross-national data on judicial selection institutions in 139 countries from 1990 to 2025. I find that one key power-dispersing institution—a super-majority requirement for selecting judges—is significantly associated with increased judicial independence from the government. I conclude with lessons for institutional reform in the United States. I show that institutions for selecting judges in the United States have increasingly concentrated power and thus left the U.S. Supreme Court structurally vulnerable to court capture by political parties.