Autocratic Entrenchment in Central and East European Constitutional Courts

• In Event: Democratic Backsliding: New Measures and Approaches

Abstract

The global decline of democracy in the past decade has been pronounced, with a new generation of studies shedding light on the processes that gradually erode contemporary democracies under legal guises. While authoritarian leaders like Erdogan, Orban, and Kaczynski drew attention for their hostile rhetoric against judiciaries and successful attempts to overtake constitutional courts, the dynamics of autocratization in Serbia, an EU candidate country, took a distinctive turn.
Besides Poland, Hungary, and Turkey, Serbia was among the top five countries globally in decline in the Varieties of Democracy Liberal Democracy Index between 2010 and 2020. Surprisingly, even though Serbia experienced a sharp democratic decline, unlike other authoritarian leaders, Vucic's ruling executive succeeded in entrenching the constitutional court without resorting to institutional transformations or limitations on its competencies.
This paper addresses the puzzle of why constitutional courts in countries like Hungary and Poland were taken over through court packing, while Serbia, following a similar path of autocratization, did not witness such interventions. It argues that autocratizing governments employ different strategies based on external political constraints and the resilience of domestic institutions while sharing a common mechanism: the cultivation of political loyalty among appointees to secure legislative majority-favorable outcomes.
The argument unfolds in three steps. First, it establishes that constitutional courts, as obstacles to autocratization, understood as a gradual concentration of power in the executive, become prominent targets due to their institutional isomorphism and widespread presence in autocratizing states. Second, the paper categorizes authoritarian takeover strategies based on executive intentions and intervention intensity, proposing four types: dissolution, court-packing, court-curbing, and less perceptible entrenchment. The paper contends that strategy choice in hybrid regimes depends on external constraints and domestic institutional resistance. It compares Turkey, Hungary, Poland, and Serbia cases to illustrate the association between external and internal constraints and outcomes.
Third, the paper establishes the critical empirical link between judges' appointments and subsequent behavior, emphasizing the mechanism of political loyalty, or decisions primarily motivated by political considerations towards the appointers. Utilizing a novel dataset of Serbian Constitutional Court decisions (2008-2020, N=1024), the paper employs a difference-in-differences approach to evaluate the impact of changes in judge appointments on normative control. By comparing changes in upholding or striking down the normative acts over time between the treatment group (national assembly) and the control group (other sub-national assemblies), the paper discerns the causal effect of the judges' political loyalty towards the appointing majority.
These findings elucidate often overlooked mechanisms of undermining democratic institutions and offer insights into majoritarian impulses across government branches and regions. The study contributes to discussions on protecting democratic institutions from authoritarian encroachment, particularly in Central and East Europe.

Author

• Vujo Ilic, University of Belgrade