To Reinforce or Replace: Courts and Democratic Backsliding

Abstract Current scholarship conceives of courts as victims or targets of populist authoritarians. But can empowered courts facilitate democratic backsliding? This article develops a new framework for understanding the approaches judiciaries take when tackling political corruption and argues that when judges attempt to replace ‘corrupted’ elected branches as the primary representative institution, their actions and rhetoric can enable populist authoritarians to seize power, raising the risk of democratic backsliding. I combine jurisprudence, newspaper archives and interviews to trace the process through which Pakistan’s Supreme Court, committed to playing a representation-replacement role, enabled the military-backed populist Pakistan Tehreek-e-Insaaf to come to power in 2018, and use its powers to reverse Pakistan’s democratic transition. I also probe the political impact of anti-corruption jurisprudence in more established democracies. In doing so, I introduce a typology for understanding approaches courts take when combating corruption, and highlight the threat to democracy that can emerge from judiciaries.