Political populism has been widely discussed in the past few decades. The most widely accepted definition of populism is a political movement which positions one group as morally just and another as morally evil (Deiwiks, 2009). This process of “othering” is often done in the wake of socioeconomic strife or other crises (Deiwiks, 2009). Populism is seen as a unique threat to liberalism, as it has emerged in countries that have historically valued and upheld liberal institutions. The outcomes of different populist regimes have varied significantly, with some populist movements losing momentum and others transforming liberal governments into authoritarian or hybrid regimes. This article explores two populist regimes with a specific focus on trends in judicial independence, potential causes of these trends, and barriers that judicial independence poses for populist regimes when implementing policies.
El Salvador
El Salvador is one of the most recent and most fascinating examples of populism. Between the conclusion of the Salvadoran civil war in 1992 and 2021, its proportionally-elected legislature has been dominated by the left-wing Farabundo Martí National Liberation Front (FMLN) and the conservative National Republic Alliance (ARENA). The status quo changed in 2019, however, when former FMLN member and Mayor of San Salvador Nayib Bukele ran for president in a campaign that primarily focused on curtailing El Salvador’s rampant gang violence. He defeated ARENA leader Carlos Calleja in the 2019 election, and in 2021, his Nuevas Ideas (NI) party won a supermajority in the legislature. Since 2022, Bukele’s government has declared, unconstitutionally, El Salvador to be in a “state of emergency” due to gang violence. The solutions that the government has utilized under the emergency rule include arbitrary imprisonments and enforced disappearances, and has resulted in severe prison overcrowding. Bukele has imprisoned around 8 percent of the young male population since 2019. Despite international criticism that these policies constitute blatant human rights violations, Bukele has a 91.3% approval rating, and his policies have dramatically reduced violent crime. Bukele’s success in addressing gang-related crime has allowed him to successfully position himself and the NI as morally just in spite of their authoritarian tactics. Critics of NI, such as members of other political parties and international institutions like the UN, are in turn made out to be enemies to Salvadoran security.
Since gaining control of the legislature, NI has taken a number of steps to decrease the power of El Salvadoran courts. It deposed the attorney general, alongside all magistrates of the Constitutional Chamber. They were replaced, in violation of El Salvador’s constitution, by judges sympathetic to the NI party. These sympathetic judges permitted Congress to grant Bukele the right to implement the state of emergency. Subsequently, El Salvador implemented multiple unconstitutional reforms to benefit NI, including completely redistricting the country and reducing the number of seats in the legislature. These reforms were criticized as reducing plurality in the country, with some saying that NI’s present day 90% majority in the legislature would have been only a 73.3% majority under the old system. Recently, NI also altered the process for amending the constitution, making it easier for the ruling party to pass amendments.
Hungary
Hungary is another prominent example of populism, though the circumstances surrounding how Prime Minister Victor Orbán came to power is a bit different. Orbán’s Fidesz party came into power in the aftermath of the 2008 financial crisis, replacing the former ruling Hungarian Socialist Party (MSZP) in 2010. Fidesz ran as a center-right party and managed to outcompete MSZP, the eco-leftist Finally Doing Politics Different party, and the far-right Jobbik party to gain a parliamentary supermajority. Despite receiving only 53% of votes, Fidesz controlled a disproportionate 68% of parliamentary seats. This was a result of Hungary’s post-Soviet constitution providing bonus seats for large parties with the intent of promoting governmental stability (Bánkuti et. al, 2012). This also meant that Fidesz held a two-thirds majority in the legislature, enough to make constitutional amendments (Bánkuti et. al, 2012). Orbán and Fidesz utilized this power to the fullest extent; they stripped the constitutional court of its ability to strike down any legislation that concerned taxes or finances and changed the process of constitutional amendment such that only a two-thirds majority was needed, as opposed to the prior system, which also required majority approval from all parties in the national assembly (Bánkuti et. al, 2012). They also filled the court with pro-Fidesz judges and gerrymandered the country, successfully maintaining a two-thirds majority in every election since, even when receiving less than half of the vote (Bánkuti et. al, 2012). Fidesz’s populist agenda has positioned many opposing forces as enemies, including the European Union, domestic political opponents, immigrants and foreign financial institutions (Antal, 2017). His criticisms of immigrants and the European Union have often concerned their supposed negative effects on Hungary’s financial situation. However, some scholars suggest that his many targets simply serve as mechanisms through which he is able to mobilize his base of support, often without a consistent tangible throughline (Antal, 2017).
Limits to Judicial Independence
It is clear that a key feature of the populist ruling parties in El Salvador and Hungary has been placing limits on the power of the judiciary. Key amid these powers is judicial independence, the degree to which the judiciary can act independently of the legislative and executive branches of government. Judicial independence is perceived as vital to liberal governance, permitting the rule of law to be enforced without the influence of political bodies. There are two separate metrics used to describe judicial independence: the de jure judicial independence index (DJJI) and the de facto judicial independence (DFJI) index. The DJJI index describes protections given to the judiciary that are explicitly outlined in a country’s constitution, while the DFJI accounts for other variables that affect a magistrate’s ability to exercise power (Melton & Ginsburg, 2014). I will be focusing on the de facto metric in this article primarily because it accounts for political and economic factors which might affect judicial power. This allows us to observe time-dependent changes in judicial independence that result from changing political and economic climates. There is some controversy surrounding the metrics used in the DFJI calculation regarding how causally determinative each variable actually is; however, the shortcomings of the metric are perceived by many scholars as not outweighing its utility (Melton & Ginsburg, 2014).
We can see in the graph below that in both Hungary and El Salvador, judicial independence has dropped starkly since the populists came into power. Orbán was elected in 2010, and judicial independence has steadily declined since, while Bukele’s 2019 election marked an even sharper drop off.
Source: World Bank
The West has seen a shift towards populism as well, notably in the United States and Italy. In the U.S., right wing populist parties controlled the executive and part of the legislature for some or all of the last decade. In the U.S., the Republicans under Donald Trump held the executive branch and part of the legislature from 2017 to 2021, and in Italy, the Five Star Movement led the government from 2018-2021. Both of these parties can be generally categorized as engaging in anti-immigrant populism (Nagel, 2019).
Populist rule in the U.S. and Italy differ from El Salvador and Hungary in two key ways, though. The first is that the populist parties in the U.S. and Italy were dethroned in subsequent elections. In the United States, the center left Democrats replaced the Republicans in the 2020 election. In Italy, Five Star lost to a different right wing party, the Brothers of Italy. This government has itself been criticized for its authoritarian tendencies; however, it has notably struggled to curtail the influence of opposition parties in subsequent regional elections, indicating that it similarly lacks the capacity to control electoral outcomes. The second major difference is that judicial independence in each of these nations remained relatively stable while the populist parties were in power.
Source: World Bank
Given this, it could be that the absence of protections on judicial independence is what encourages the success of populist regimes. This would seem to make sense as, in liberal governments, the judiciary serves as the check to the government unconstitutionally exercising power. If a government can compel the judiciary to act in a particular way, whether through constitutional amendment, legislation, or political pressure, it would enjoy significantly more power to implement its agenda. However, a deeper dive into the literature provides a more complicated picture.
One of the ways in which Fidesz and NI have attempted to limit judicial independence is through constitutional amendments. At first glance, it might appear that this is the defining difference between El Salvador and Hungary’s populism and the U.S. and Italy’s populism. In contrast to El Salvador and Hungary’s constitutional amendments, there was only a single amendment passed in both the U.S. and Italy during populist rule, that being the Five Star Movement’s 2020 amendment to the number of deputies and senators serving in government.
However, existing literature on the relationship between DJJI and DFJI suggests that constitutional protections for the judiciary have little to no actual correlation with the level of de facto judicial independence. Milton & Ginsburg’s study, Does De Jure Judicial Independence Really Matter?, found that elements of de jure judicial independence, such as statements of judicial independence within the constitution, have a positive correlation with DFJI, but when covariates such as economic performance, press freedom, and democracy level are considered, it ceases to be statistically significant (Melton & Ginsburg, 2014). Additional studies have shown similar results, with some even finding a weakly negative correlation between DJJI and DFJI (Tsebelis, 2022). It could be extrapolated from this that amendments which specifically target judicial independence might also be statistically insignificant. Given a lack of literature in this specific area, this assumption is not backed by empirical evidence—still, it puts into question whether the capacity of Fidesz and NI to weaken constitutional protections for the judiciary can explain the discrepancy in judicial independence’s stability. It also puts into question the relevance of the supermajority, a significant difference that we can observe between the U.S. and Hungary. Both countries require a two-thirds majority to amend their respective constitutions, but if the power to amend constitutional protection is not the key factor determining judicial independence, it’s unclear whether reaching that threshold is relevant.
In Hungary’s case, however, constitutional amendments to judicial power do seem to have mattered significantly regarding judicial independence. An Amnesty International report found that the specific amendment which limited the constitutional court’s jurisdiction over financial legislation has been particularly damaging to judicial independence. Populist constitutional amendments’ ability to erode judicial independence is more questionable in El Salvador, though, where Bukele and NI have overridden court opinions and international standards for judicial independence on so many occasions that constitutionality might simply no longer be a relevant factor. A broader analysis of countries across the globe should be done to establish how and why constitutional amendments may or may not be relevant in affecting judicial independence. In addition, an analysis of cases like Hungary, in which a single party was able to control the entire government, curtail judicial powers, and usurp the electoral process, should be included when engaging in constitution design moving forward.
An additional question must be answered, though. Why, exactly, do populist regimes desire to decrease judicial independence? Specifically, why does a low degree of judicial independence help populist regimes implement their policy agendas? The answer is nuanced.
An enlightening perspective on the utility of low judicial independence for populist regimes is provided in Tsebelis’ paper Judicial Independence, Discretion and Preferences. Tsebelis describes the relationship between judicial independence and how the judiciary chooses to use its power. Tsebelis’ findings show that an increase in judicial discretion—the courts’ constitutional ability to exercise power over the government—carries with it a heteroscedastic increase of the actual usage of judicial power (Tsebelis, 2022). Heteroscedasticity occurs when the standard deviation of a variable increases as a dependent variable increases (Tsebelis, 2022). In other words, when judicial independence is low, there is a little deviation in how often judicial discretion is exercised, and when judicial independence is high, there is high deviation. The choice to exercise discretion is based on a judiciary’s opinion on a policy, though. Even if judicial independence is high, if the judiciary is in agreement with the government, they will choose not to strike down the policy (Tsebelis, 2022). Tsebelis defines a court which agrees with the government as a ‘friendly court’ (Tsebelis, 2022). Tsebelis notes that under ordinary circumstances, it is difficult to know whether or not the judiciary is friendly to the government (Tsebelis, 2022). Through this framework, reducing judicial independence would act as a safeguard to protect government action. Governments would limit judicial independence to decrease the chance that the judiciary will deviate from their policy agendas.
However, in cases where the preferences of the judiciary are known, the same policy results could still be achieved with a sufficiently friendly court. The amount of discretion which can be exercised is only relevant so long as that discretion actually is exercised. If a judiciary can be established which is credibly friendly to the government, then the safeguard of low judicial independence would not significantly affect the de facto exercise of judicial discretion. As mentioned previously, Hungary and El Salvador accomplished this by unconstitutionally replacing members of the judiciary with friendly judges. However, a friendly court can also be established constitutionally. Appointment of supreme court judges in the United States requires the President to select a nominee and a simple majority in the senate to confirm them. The political party of the executive and legislature are therefore strong indicators of the political affiliation of their appointees. Trump appointed three Republican supreme court members during his term, creating a 6-3 Republican supermajority. Even if judicial independence remains high during Trump’s next term, the court is still friendly to him and the legislature. It seems likely that the Republicans will therefore be able to pass their policy agenda unchecked, even if the constitutionality of their actions might be questionable. Italy’s process for nomination to their judiciary body, the Consulta, differs considerably from that of the United States. The chamber is composed of 15 members who serve nine year terms, five of which are chosen by the president, five by the parliament and five by the administrative and lower courts.
This process means that the policy preferences of the executive and the legislature are, of course, still relevant in determining the friendliness of the court. The preferences of the five members who aren’t selected by the government, though, are theoretically unknowable. The government of Italy therefore possesses less influence over the judiciary’s preferences than the U.S. The lower degree of certainty in the court’s friendliness would result in less predictable usage of judicial discretion, including possible usage of it to curtail populist agendas. Lowering judicial independence such that it fulfills its role as a safeguard against judicial discretion would therefore hold a more important role in Italy than in countries in which judicial preferences are easier to define.
To conclude, judicial independence has a high degree of variance from one populist regime to another. The examined case studies suggest that populist regimes in which judicial independence is stable were able to be defeated in subsequent elections, while regimes with decreasing judicial independence were not. Constitutional amendments also occurred with greater frequency in the regimes in which populist parties were unable to be defeated. However, it is unclear whether constitutional amendments have a statistically significant effect on judicial independence —though its role is not insignificant. It seems that friendliness of the court to the government is likely more influential to passing populist agendas than judicial independence. A broader analysis with more empirical evidence should be conducted to examine these claims further.
References
Antal, A. (2017). The political Theories, Preconditions and Dangers of the Governing Populism in Hungary. Czech Journal of Political Science, (1), 5-20. https://www.ceeol.com/search/article-detail?id=483518
Bánkuti, M., Halmai, G., & Scheppele, K. L. (2012, July). Hungary’s Illiberal Turn: Disabling the Constitution. Journal of Democracy, 23(3), 138-146. https://muse.jhu.edu/article/480981
Deiwiks, C. (2009, June). Populism. Living Reviews in Democracy, 2009, 1-10. https://web.p.ebscohost.com/ehost/pdfviewer/pdfviewer?vid=1&sid=100a0386-b595-4042-8fee-f804100bba0b%40redis
Melton, J., & Ginsburg, T. (2014, September). Does De Jure Judicial Independence Really Matter? A Reevaluation of Explanations for Judicial Independence. Coase-Sandor Institute for Law & Economics Working Paper, 2, 187-217. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1178&context=law_and_economics
Nagel, C. (2020, May 20). Populism, immigration and the Trump phenomenon in the U.S. Environment and Planning C: Politics and Space, 37(1). https://journals.sagepub.com/doi/abs/10.1177/0263774X18811923c?journalCode=epcb
Tsebelis, G. (2022). Judicial Independence, Discretion and Preferences. https://sites.lsa.umich.edu/tsebelis/wp-content/uploads/sites/246/2022/10/ji_finalversion.pdf
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