Humboldt-Universität zu Berlin - Integrative Research Institute Law & Society (LSI)

We have a highly developed theoretical and empirical literature on judicial independence, but there is less research on judicial backsliding: the process through which duly-elected executives reduce court independence and thus collapse the separation of powers. We conceptualize judicial backsliding and argue that legislatures as well as executives are likely to be implicated in it. We test two contending theories: a dominant approach in the judicial literature that focuses on the degree of partisan support an autocratic executive can rely in the legislature; and an alternative approach that considers institutional constraints on the executive, including those emanating from legislative powers. Using a unique data set of judicial backsliding onsets and case examples, we find that in a sample of countries crossing an electoral democracy threshold, a decrease in horizontal constraints on the executive is highly related to onsets of judicial backsliding while the degree of partisan support in the legislature is generally not significant. The argument has wider implications for the study of judicial independence and for the role that legislatures and courts play in the backsliding process more generally.