How Judges Can Challenge Dictators and Get Away with It: Advancing Democracy while Preserving Judicial Independence

Abstract

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 disobey the unfavorable 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 acquiescence. 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.