Who Will Save the Redheads? Towards an Anti-Bully Theory of Judicial Review and Protection of Democracy

Democracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches. Using comparative examples, the Article demonstrates how courts can indeed function as a useful stop sign or speed bump against attempts to erode the constitutional order.

Since a central feature of democratic erosion is court-capturing, -packing, or -threatening, this Article builds on anti-bully theories to propose an “anti-bully theory of judicial review,” which posits that the judiciary should neither go down the bunker nor retaliate the confrontation but try, as much as possible, to act as though everything is “business-as-usual.” At its core, this Article argues that courts have an important role in protecting democracy against constitutional reforms eroding the constitutional order and that courts should stand firm against pressure so they can do their best to protect democracy, even if they cannot save democracy on their own.