The Judicial Bulwark: Courts and the Populist Erosion of Democracy

The optimistic views of the 1990s which predicted the success of liberal democracy are long gone. Regardless of whether there is an autocratization wave or not, there is consensus that populist executives are the main actors who generate democratic erosion. In this dissertation, I propose a theory to explain how courts can contribute to either promoting or resisting this autocratization process. After a populist politician takes office, one possible trajectory of liberal democracy is erosion. In this path, executives slowly undermine some components of democracy using legal mechanisms and produce institutional changes that might not seem undemocratic for many. If populist executives are able to co-opt or (at least) neutralize apex courts early on, they gain an initial advantage over the opposition that helps them to undermine other components of liberal democracy. As autocratization events accumulate and interact, the executive co-opts other institutional actors and rigs the playing field against the opposition. Recent examples of democratic erosion are Turkey under Erdoğan (2003–), Bolivia under Morales (2006–2019), Hungary under Orbán (2010–), and Poland under Law and Justice (2015–). As a successful case of democratic erosion, I focus in this dissertation on Ecuador under the presidency of Rafael Correa between January 2007 and May 2017. Liberal democracies can also experience an alternative regime trajectory: democratic resilience. In this path, executives mostly fail in producing autocratization events as a consequence of the coordinated resistance of several state (e.g., the bureaucracy, the judiciary, and the armed forces) and non-state actors (e.g., opposition parties, the media, and civil society organizations). If apex courts remain autonomous from the executive, they can implement coalition-building strategies with other actors to resist the populist executive. Independent judges are crucial since they can legally establish that the executive is undermining liberal democracy. Recent examples of paths of resistance to democratic erosion are Colombia under Uribe (2002–2010), the United States under Trump (2017–2021), and Brazil under Bolsonaro (2019–2022). In this dissertation, I focus on Argentina between December 2007 and December 2015 under the presidency of Cristina Kirchner as a case of resistance to democratic erosion.