The literature on constitutional courts in authoritarian and hybrid regimes typically suggests that judges who challenge such regimes in high-stakes cases risk substantial political backlash. Accordingly, some comparative constitutional law scholars argue that courts should develop strategies such as judicial avoidance or weak judicial review practices to prevent a clash with the governing regime. This Article proposes an alternative, suggesting that those strategies are unnecessary where courts are able to preserve or promote democratic values without incurring backlash.
Where feasible, judges should prefer this case-specific confrontational tactic to survival strategies, such as weak judicial review or constitutional avoidance. To succeed, judges must identify and predict the regime’s expected costs of disobeying a judicial decision. If the projected costs are high enough, the regime’s leaders might prefer to comply with the ruling.
One way in which this judicial strategy can work is by triggering a constitutional paradox. This term describes the dilemma dictators face when they are forced to decide whether to support the constitutionally-rooted institutions they themselves have established, or to dis- obey the unfavourable decision while risking to divide the regime’s supporting coalition, harm their own credibility, or weaken the legitimacy or authority of their regime’s institutions. As a tool of judicial statecraft, the well-crafted paradox raises the costs to the regime of ignoring any
single judicial decision, and those costs may be sufficiently high to pressure autocrats into ac- quiescence. This Article uses the Chilean Constitutional Court during the Pinochet Dictatorship (1973– 1990) to show how the constitutional paradox can push dictators to respect adverse judicial rulings in high- stakes scenarios, and to identify the preliminary conditions in which judges may be able to successfully deploy this strategy against the regime.
SERGIO VERDUGO
IT is common knowledge that constitutional courts are generally unlikely to challenge authoritarian or hybrid regimes to advance a democratisation agenda. One reason for this is the risk of political backlash.
And although the exceptional heroic (or perhaps foolish) judge who challenges those types of governments does exist, it is still unlikely that those judges will be able to compel authoritarian leaders to comply with their rulings.
Perceiving the limited possibilities of advancing a democratisation agenda in that context, and recognising the vast potential harm to judicial independence that could result from such a challenge to the regime, some scholars suggest that judges should develop safe strategies — such as judicial avoidance and weak judicial review — to avoid direct confrontation.
These strategies represent a unique brand of institutional self-preservation for courts in the context of authoritarian and hybrid systems which I call survival strategies.
The core idea is that courts should aim to preserve some measure of judicial power or independence by developing a cautious and non-confrontational attitude vis-à-vis the governing regime.
Through these strategies, judges can prevent political backlash by, in Yaniv Roznai’s words, “go[ing] down the bunker” and avoiding conflict with the regime until such a time when political backlash is no longer likely.
The preference for survival strategies among academics rests on a generally pessimistic evaluation of the capacity of constitutional court judges to prevent or delay the processes of democratic decay, as well as the corollary likelihood that judges who dare to directly confront an autocrat or strongman will suffer reprisals.
The relative pessimism shared by many scholars in this field likely stems from a number of recent occurrences of backlash.
Essentially, these scholars seem to ask: if judges lack the tools to successfully stand up to authoritarian regimes, why should they oppose democratic regression at all?
But the blanket pessimism which underlies the strong preference for survival strategies is unwarranted — and survival strategies, although sometimes useful, are not always necessary.
Sometimes, constitutional judges can in fact challenge authoritarian or hybrid regimes without risking significant political backlash.
Where possible, I suggest that it is normatively desirable for judges to do so in order to preserve or protect at-risk democratic principles.
In determining when to forgo survival strategies in favour of challenging the regime, judges should consider the interplay of two factors that can help predict whether political backlash is likely.
First, they must determine whether the case before them involves a high-stakes question for the regime.
Examples include cases where a ruling against the regime would threaten an incumbent’s office or the survival of policies that are crucial for justifying the regime’s political narrative.
If the stakes are high, sitting dictators or strongmen will have strong incentives to ignore unfavourable judicial decisions or attack the courts.
Second, judges must estimate the political costs to the regime of ignoring judicial decisions or targeting the courts for reprisals.
Costly consequences for the regime come in different forms, such as dividing the ruling coalition or damaging the regime’s credibility with crucial allies.
The higher the costs of non-compliance, the less willing a rational dictator or a strongman will be to disobey a judicial order or take other action against the courts.
The higher the stakes, the greater the costs such autocrats will be ready to accept; the lower the stakes, the lesser the costs they will be willing to pay.
Constitutional courts can sometimes even make regimes obey an unfavourable decision in high-stakes scenarios by crafting an opinion that creates substantial costs of non-compliance for the regime.
The key to successful court challenges to authoritarian and hybrid regimes, then, is for judges to identify the costs of non-compliance — and to increase them.
The constitutional paradox is one way in which judges can raise the regime’s costs of non-compliance in high-stakes cases.
The paradox takes the form of a judicial decision that offers two tragic options for the regime: (1) obey the unfavourable outcome, or (2) reject or ignore the ruling, but incur an additional cost.
More precisely, the cost of non-compliance in the second option involves putting at risk a long-term interest of the regime or its leaders by forcing the regime to delegitimise an institution or norm that is essential for the regime’s plans — either because it is key to the regime’s self-legitimising narrative, the regime’s leaders remaining in power, preserving cohesion within the regime’s supporting coalition, or maintaining a policy fundamental to the regime.
For the constitutional paradox to work, the costs of the second option need to be higher than the costs of losing the particular case.
The crucial question for judges is how they can assemble their legal rationales to trigger the possibility of a regime-threatening risk in the case of non-compliance. If judges are able to develop that framework — which, of course, will not be possible in every case — there is no need to employ survival strategies.
Rather, in those situations where it is possible, judges should attempt to protect, promote, or preserve democratic values, even if that means confronting the regime.
This article uses the Chilean Constitutional Court of the 1980s as an example of a court that succeeded in advancing its country’s democratisation process through the use of constitutional paradoxes.
The Constitutional Court — itself a creation of the Pinochet regime’s 1980 Constitution — interpreted and employed political principles included in Pinochet’s constitution against his own political ambitions.
In doing so, the judges of the Constitutional Court raised the costs of non-compliance for the regime by cornering the Junta and Pinochet into making a hard choice.
On the one hand, they could have respected the authority of their own regime’s constitution and constitutionally-prescribed court, making the regime’s institutional promises credible to both the public and to the supporting coalition.
On the other hand, they could have disobeyed the court’s rulings at the cost of debasing or delegitimising a core institution of their regime — and by extension, the constitution which gave it life — and dividing the regime’s supporters.
The cases where the court challenged the Pinochet regime involved high stakes because they concerned the rules for Chile’s transition to democracy. Nevertheless, the political costs of ignoring those decisions or taking action against the court were too high for the regime to tolerate.
These costs are key to explaining why the regime ultimately followed the court’s rulings against its interests.
The experience of the Chilean Constitutional Court during this period contributes to the contemporary literature on judicial strategies under authoritarian and hybrid regimes by offering an alternative to the recommendations for survival strategies.
The Chilean example demonstrates that constitutional court judges do not need to use survival strategies if they can raise the costs to the regime of disobeying a ruling that will help advance democratic values.
As in Chile during the 1980s, judges in authoritarian and hybrid regimes today must identify those costs.
Research on this point may also be useful to constitutional judges in jurisdictions that have experienced democratic erosion or an authoritarian turn, or that are moving in that direction, over the past few years.
Indeed, democracy’s recent regression in several countries makes this literature on judicial strategy more critical now than ever before.
To be continued…
Aboit the writer: Dr Sergio Verdugo is an assistant professor of law at IE Law School in Madrid, Spain, where he teaches constitutional law and human rights law. He holds a doctorate in law from the New York University School of Law (NYU) and a master’s degree in law from the University of California, Berkeley. He also holds a Master in Public Law from P. Universidad Católica de Chile, where he won the
“Alejandro Silva Bascuñán award, and an LLB from Universidad del Desarrollo, Chile.
