The Unintended Consequences of Judicial Valiance

Courts in perilous timesWe are living in perilous times for liberal democracy.According to the latest V-Dem Institute Report, the level of democracy worldwide has fallen to levels last seen in 1985prior to the fall of the Berlin Wall and breakup of the USSR.The world today has fewer democracies than autocracies for the first time in twenty years, and liberal democracy is now the least common regime type in the world (V-Dem Institute 2025, 6-9).Freedom House's Freedom in the World 2025 report paints a similarly bleak picture, showing that sixty countries in 2025 experienced a decline in civil liberties and political rights, compared to only 34 that showed an improvement.The last time more countries improved on these measures than declined was twenty years ago in 2005 (Freedom House 2025, 1-3).Over the past decade, these disturbing trends have made the study of authoritarian-leaning governments central to the fields of comparative politics and comparative constitutional law (Keck 2023).Such governments are hostile to core features of liberal democracy, including fundamental rights and institutional checks on their power.The first wave of scholarship in this subfield focused primarily on the "authoritarian playbook" (Diamond 2019).It looked at how authoritarian-leaning leaders who were popularly elected sought to systematically undermine democratic institutions (Levitsky and Ziblatt 2018).Chief among these institutions were courts, which had long been viewed as constitutional guardians and bulwarks for the rule of law against anti-democratic forces (Mller 2012).Recent work has challenged that traditional conception.Scholars have explored how courts have facilitated and, in some cases, actively contributed to democratic