Poland’s Judicial Reform Before the European Courts: What Makes a Court a Non-Majoritarian Institution?

The rule of law crisis in Poland underscores the importance of European courts and multi-layered constitutionalism in establishing a minimum standard that national courts must meet to function as non-majoritarian institutions. Analysing the case law of the CJEU and the ECtHR concerning judicial reform in Poland, the paper investigates whether and how the rulings of these two European courts on various aspects of the controversial judicial reform implemented in Poland during the Law and Justice government (2015-2023) can help define what qualifies a court as a non-majoritarian institution. In particular, this Article explores the role of European courts in shaping the political discourse surrounding judicial power in Europe, thereby promoting strong standards for effective, independent, and rule-of-law-compliant national courts. It claims that the judicial resistance of Polish judges was a key factor in the dynamic development of European courts’ case law on judicial independence and contributed to the more dynamic and comprehensive response of the European courts. Judgments of both European courts certainly provided significant argumentative support for common and administrative courts in their efforts to counteract the deepening crisis of the rule of law; however, their systemic effectiveness in compensating for the defective operation of the Polish apex courts turned out to be rather limited. This article is part of a contribution to a Special Section that critically analyses the role of non-majoritarian instruments and institutions with respect to three challenges that shape contemporary democracies in Europe: socio-economic inequality and discrimination, growing authoritarianism, and the pressing climate crisis.