The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of the main purposes of judicial independence is to enable courts to serve as a check on democracy and the tyranny of the majority. In Poland, however, judicial independence was just saved by a popular protest movement—and majority public opinion. Earlier today, Polish president Andrzej Duda vetoed two laws passed by the ruling right-wing nationalist Law and Justice Party(PiS), which would have gutted judicial independence by essentially empowering the government to force out and replace current Supreme Court justices at will, and give the justice minister control over future Supreme appointments. To put it in American terms, the ruling party's proposal was Franklin D. Roosevelt's failed 1937 "court-packing" bill on steroids. It would, among other things, have eliminated a major obstacle to the deeply illiberal PiS's efforts to undermine civil liberties, such as freedom of the press.
President Duda may well have made the unexpected decision to veto the bill in large part because of massive public protests against it (including some joined by former President Lech Wałęsa, legendary leader of the Solidarity movement against communism), and the the opposition of public opinion. A recent survey showed that 55% of Poles wanted the president to veto the legislation, with only 29% in favor of him approving it. While the ruling party may continue to target the judiciary, for the moment its efforts to undermine the courts' independence have largely failed.
It is, in some ways, ironic that an important check on the excesses of democracy was saved by popular protest and majority public opinion. In historian Nancy MacLean's terms, it's almost as if Poles are radical libertarians who want to put democracy in chains. In reality, however, the need for an independent judiciary to constrain democracy in significant ways is widely recognized by many on both left and right. It is needed to protect important rights, to curb the potential for "tyranny of the majority," mitigate the danger posed by public ignorance, and in some cases even to preserve democracy itself in the long run.
Poland is far from the only country where the preservation of judicial independence depends in part on majority public opinion. The same is true even in the United States, with our long history of judicial review. Historically, the Supreme Court has hesitated to go too far in challenging majority opinion on major issues, lest it be defeated in the resulting political confrontation. Courts do periodically strike down laws that enjoy majority support. But they are able to do so in part because judicial review itself enjoys public approval. Most of the time, the Supreme Court—the least democratic branch of government— enjoys higher approval ratings than Congress, and often beats the president, as well.
I certainly do not claim that judicial review by independent courts is a valuable institution merely because most Americans (or most Poles) approve of it. Having written extensively about the dangers of widespread political ignorance, I would be the last to suggest that majority public opinion is necessarily right. Much of the time, there is little connection between the popularity of political views and their validity. In this instance, however, majority opinion is right precisely because of its serious flaws on many other issues. It is fortunate that a majority of the people realize that we need judicial review to help protect us against the people's own excesses.
UPDATE: I should emphasize that, in my view, majority public opinion does not support judicial review on as wide a range of issues as it ideally should. But what it does support is a lot better than nothing.
UPDATE #2: At the Washington Post's Monkey Cage blog, political scientist Monika Nalepa has an excellent discussion of the issues at stake in the PiS' effort to seize control of Poland's judiciary.