We Are Launching the Judicial Resilience Project

Over the past 18 months, we have studied what would happen if authoritarian populists gained control over state power in the Eastern German state of Thuringia. We travelled across the entire Federal Republic to better understand this question and bring our scenarios to public attention. In our more than 150 research interviews, we found time and again that institutions and actors were unprepared for the strategies of their authoritarian opponents. At the same time, we repeatedly experienced how quickly resilience effects could be achieved when we developed scenarios together with stakeholders.

Now, we must witness how some of the scenarios we studied are already becoming reality. At the very start of the new legislative term in September 2024, the AfD caused an uproar during the inaugural session of the Thuringian state parliament by exploiting the position of Father of the House (Alterspräsident) for its purposes. The Thuringian Constitutional Court, which was called upon to clarify the matter, has since been subjected to a comprehensive smear campaign – ranging from systematic verbal attacks to criminal charges and motions for impeachment against individual judges. Now, the AfD parliamentary group is using its blocking minority to obstruct the judicial selection committee. If the committee remains paralysed, no judges can be appointed for life in Thuringia. Given the massive wave of retirements in the coming years, this poses a serious threat to the functioning of the state’s judiciary. Moreover, the AfD will be able to block the election of new constitutional judges in the years to come.

With the Judicial Resilience Project, we aim to expand our work to the entire Federal Republic. These are not just isolated incidents that the rule of law must simply endure – on the contrary: wherever one looks, such attacks on the judiciary are at the core of the authoritarian-populist strategy. This comes as no surprise: as long as the judiciary functions, it can limit executive aggrandisement by authoritarian populists; however, once the judiciary has been successfully captured, it becomes a powerful instrument of control.

A particularly stark example can currently be seen in the United States: federal judges are blocking Donald Trump’s unlawful executive orders almost daily. One thing is clear: independent courts will not be able to prevent an authoritarian power grab on their own, and Trump appears willing to ignore court rulings. Yet courts can delay and complicate such takeovers. They often reveal that the legal semblance of authoritarian-populist measures is deceptive. This is why independent courts are a nuisance to authoritarian populists. For this reason, authoritarian populists have developed various strategies to neutralise an independent judiciary – or, if possible, to make it compliant. Let’s take a look at their toolbox and at global cases of “judicial backsliding” that are less well-known:

Judicial backsliding often begins with public attacks and delegitimisation of the judiciary: “enemies of the people”, “shitty courts”, or “the law must follow politics”. This systematic defamation can lay the groundwork for later judicial reforms and justify them, as seen in Mexico. The election of judges can be blocked – not just in Thuringia but also, for instance, in India and Taiwan. Or the executive prevents the appointment of judges, as seen in South Korea. Parliament abruptly removed Prime Minister Han Duck-soo because he refused to appoint constitutional judges selected by it. The Prime Minister feared that doing so would make an impeachment of the President more likely.

A wide range of measures falls under court-packing: Authoritarian populists can create new judicial positions, panels, or even entire courts and staff them with loyal judges, as in Turkey. Viktor Orbán and Jarosław Kaczyński lowered the retirement age to force experienced judges and officials into early retirement. Or new lustration laws can be introduced to specifically remove certain court presidents, as seen in North Macedonia.

At the same time, judicial powers can be curtailed, for instance, by changing legal remedies and procedural rules – something that was planned in Israel and enacted in Mexico last year. Slovakia illustrates how a government can control who gets prosecuted and who does not; it abolished and fired the Special Prosecutor for Corruption. Often, a combination of strategies proves most effective: In Taiwan, the parliamentary majority is currently paralysing the constitutional court by introducing a higher quorum for constitutional rulings while simultaneously blocking the appointment of seven out of fifteen constitutional judges.

These examples show that such tactics often work. But not always. In Romania, a judicial association acted as a “ghostwriter”, drafting preliminary references on judicial independence that its members could submit to the European Court of Justice. In Argentina, between 2007 and 2015, broad alliances formed between the judiciary, the media, and civil society to counter Cristina Kirchner’s attacks on the free press and the independent judiciary. In Israel, a coalition of legal scholars and civil society opposed Netanyahu’s judicial reforms, warning early and convincingly about the consequences. They held lectures in living rooms and bars, drafted position papers, informed the public, and mobilised support: “It appears that the Israeli public participated in an ‘advanced constitutional law seminar’ during that year”, some experts wrote in the ICON Journal (p. 22).

Against this backdrop, we want to address some urgent questions. How vulnerable is the third, the “weakest” branch of government in Germany – both at the federal and state levels? Where could sand in the gears of the judiciary grind it down to a halt? With what levers could authoritarian populists be able to exert influence, create dependencies, and exploit weaknesses?

What happens if the confidentiality of constitutional court deliberations can no longer be maintained because political hardliners on the court could leak every word to the public? How can the functionality of the state constitutional courts be ensured in the future against parliamentary obstruction? How can state constitutional court decisions be enforced if their authority is eroding? Could particularly sensitive legal disputes be deliberately channeled to selected courts through jurisdictional reallocations? To what extent could authoritarian populists make access to effective legal protection more difficult? Are there ways to steer the internal allocation of judicial responsibilities? How could judges be co-opted and loyal judges moved to key positions through promotions? These are all questions that have received little attention in Germany so far.

For a long time, all of this seemed distant – impossible, even – for the German Rechtsstaat. We are no longer so sure. That is why, in the coming months, the Judicial Resilience Project will develop scenarios based on international experiences and test their plausibility within the framework of German law – in the books and in action. To this end, we will engage with decision-makers and experts across the country.

The Thuringia Project has demonstrated that some loopholes that would make the authoritarian populists’ life easy can indeed be closed. At the same time, it remains fundamental to acknowledge that no constitutional order can be completely shielded against an authoritarian populist takeover. What we can do, however, is identify and expose vulnerabilities before they are exploited. We aim to generate and disseminate knowledge, so that it is available when we need it.

To carry out this work, we need your support.

Donate now

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Editor’s Pick

by MARIE MÜLLER-ELMAU

© Kino Lorber

While deconstructive politics are relentlessly unfolding around me in the U.S., the recently released Belgian documentary Soundtrack to a Coup d’État has left its mark on me. The film intertwines various stories and historical details into a central meta-event: the politicization of jazz.

At its heart are the rise and assassination of Patrice Lumumba by the CIA, while the U.S. and the Soviet Union fight for influence and resources in the Congo. To maintain the appearance of peace, the CIA sends jazz legends like Louis Armstrong and Nina Simone as freedom ambassadors to the country, amidst ongoing segregation and the emerging civil rights movement. The editing and, crucially, the soundtrack emphasize the porous boundaries between art and politics, highlighting the absurd simultaneity of liberation and control.

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The Week on Verfassungsblog

summarised by EVA MARIA BREDLER

It seems like our set-up for the foreseeable future will look like this: Governments everywhere rendering their performance of the authoritarian playbook, the civilian audience either paralysed or cheering, and us trying to write meaningful reviews the next day. Depressing. But if we’re doomed to watch this play unfold, why not make it a bit more immersive?

WILIAM E. SCHEUERMAN (EN) gives an introduction to the play that’s being performed on the U.S. stage right now – the “scary sequel” to last season’s “Trump’s Straussian Shysters”. It involves the ultra-conservative Claremont Institute and its self-declared “Claremonsters”, and their unexpected comeback this season in what they describe as a “post-Constitutional time”, where judicial supremacy is in the way of the executive ostensibly restoring the original US-constitutional order.

RYAN THORESON (EN) illustrates the stakes of that play: Many of Trump’s executive orders target transgender rights while there’s a case pending at the US Supreme Court that will likely determine the framework for said rights in the future – if there’s still a general willingness to adhere to court rulings.

Pakistan is staging a similar play: In 2024, its parliament passed the most significant restructuring of Pakistan’s superior judiciary in its recent history. YASSER KURESHI (EN) argues that this judicial overhaul must be analysed as part of a process of regime realignment.

Meanwhile, the international stage seems to lose its audience – at least that’s what HELMUT PHILIPP AUST and HEIKE KRIEGER (EN) notice while watching German politics. For a long time, international law was almost idealised in German debates, but now something seems to be shifting – disregarding European and international law has become fashionable.

CDU chancellor candidate Friedrich Merz seems very much in fashion like that. His proposal to revoke German citizenship from individuals with dual nationality who have committed crimes would violate Germany’s international legal obligations. A more narrowly defined rule, however, would very much align with a European trend, as SARA COLLORIO (GER) analyses.

While we are still busy debating the “Merz Plan” for rejections at the German borders, a much more fundamental discussion has begun in Brussels. In a spectacular turn of events, the EU Commission has recently deemed “pushbacks” lawful under certain circumstances. DANIEL THYM (GER) explains how this eliminates the right to individual asylum.

The Federal Constitutional Court dealt with a somewhat opposite concern to the protection of foreigners in Germany: It had to determine the scope of foreign protection for Germans after a German journalist, who had been imprisoned in Venezuela for over four months, felt neglected by the German Foreign Office. PAUL LORENZ (GER) summarises the key findings.

Maja T. is another case about foreign protection for Germans. T. was arrested in Berlin in December 2023 on allegations that they, along with a radical left-wing group, attacked right-wing extremists in Hungary in February 2023. T.’s extradition to Hungary in June 2024 due to a European arrest warrant has raised significant constitutional concerns. The Federal Constitutional Court has now found the Berlin court’s review of detention conditions inadequate and clarified the conditions for trust in extradition law, as NICOLA BIER (GER) explains.

A different matter of trust: In Germany, employees can take paid sick leave from the first day of illness. To prevent “sick leave abuse”, some now suggest introducing a waiting day in continued wage payments. EBERHARD EICHENHOFER (GER) shows how the proposal forms part of a broader critique of the welfare state and would even increase costs instead of lowering them.

Meanwhile, Bolivian workers face severe health risks. During the economic crisis in Bolivia, mining cooperatives remain key actors due to their strong capacity for (self-)employment. DIEGO ORTÚZAR and CLAUDE LE GOUILL (EN) show how this led to weak regulations that expose miners to severe multiple threats to their health.

Amidst concerns in Ukraine that the expiration of presidential and parliamentary terms may question the legitimacy of wartime governance, OLEKSANDR VODIANNIKOV (EN) argues that wartime elections are neither feasible nor constitutionally required.

The EU constitutional order, on the other hand, is seeking ways out of a self-made maze of EU digital laws, where enforcement challenges threaten fundamental rights and democracy. SIMONA DEMKOVÁ and GIOVANNI DE GREGORIO (EN) argue that clear coordination is key to safeguarding the EU’s core principles.

Continuing our debate on “Eyes Everywhere: Surveillance and Data Retention under the EU Charter”, VALENTINA LANA and AZIZ Z. HUQ (EN) show how the CJEU’s La Quadrature du Net II decision reveals privacy risks that emerge from the complex interplay of legal regimes and commercial data practices.

For “One Year Later: Rule of Law in Poland”, M. VICTORIA KRISTAN (EN) turns to the paradox that measures to restore the rule of law could themselves violate it – and argues that the solution lies in distinguishing between violating formal legality and departing from it.

This week, we’ve concluded our symposium on “Musk, Power, and the EU: Can EU Law Tackle the Challenges of Unchecked Plutocracy?” (EN). ANNA GERBRANDY and VIKTORIJA MOROZOVAITE provide a reality-check of the potential of competition law to guard against the detrimental effects of Musk’s multifaceted concentrated power. JACQUELYN D. VERALDI and ALBERTO ALEMANNO conclude the debate by asking: Does the EU have what it takes to counter American plutocratic power? 

Our blog symposium on “The Omnipresence of Divergent Historical Narratives in Law and Politics” (EN) also came to a close this week. VERA ZVEREVA shows how both “connective” as well as “disjunctive memory” materialise in Russian digital media discourse in the 2020s. TAHA YASSERI explains why it’s crucial to recognise the potential impact of Large Language Models on the plurality of collective memory and how we can ensure that these technologies enhance rather than homogenise our shared narratives. MARCO SIDDI illustrates how the “politics of forgetting” influence both domestic and foreign policy. ANA MILOSEVIC closes by reflecting on commemorative practices such as memorials, museums, and national remembrance days as tools for violence prevention in both the offline and online world.

Finally, LUÍSA NETTO (EN) portrays Eunice Paiva, a prominent Brazilian lawyer and human rights defender, for our “Outstanding Women of International, European and Constitutional Law” project. Through the lens of the award-winning film “Ainda Estou Aqui” and her personal narrative, she brings Eunice’s extraordinary story to life – and reminds us that there are indeed more stories to tell and perform than the authoritarian playbook. As she puts it:

“May Eunice’s lesson inspire us to affirm: we are all still here, defending the rule of law, and we will continue to do so.”

If that’s not a lovely chant to interrupt the authoritarian play with.

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Take care and all the best!

Yours,

the Verfassungsblog Team

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