Is judicial resistance appropriate or necessary to check democratic backsliding? Is judicial populism always uncalled for? Can (and should) judges attempt to influence public opinion of the judiciary? These are some of the questions addressed in our roundtable discussion Courts Under Scrutiny: Judges and Democracy, held by the Oxford Global Society on 7 May. The panel consisted of Tom Daly (University of Melbourne), Lisa Hilbink (Aix-Marseille University and University of Minnesota), Agnieszka Kubal (University of Oxford) and Katarína Šipulová (Masaryk University; OXGS Fellow). The discussion was moderated by Richard W. Clary (Harvard Law School; OXGS Fellow).
In an attempt to hinder the traditional role of the judiciary branch as a check on potential overreach by the political branches of government, courts across several countries have come under attack. These attacks—which are symptomatic of democratic backsliding—have targeted the structure, rulings, and membership of the courts, and even individual judges. In response, the past decade in particular has seen the rise of judicial resistance, with judges reacting both on and off the bench against political encroachment. This roundtable explored different examples of such resistance, when and whether it is called for, how it aligns with the traditional function of the judiciary, and how the judiciary recovers its traditional role when democratic backsliding has been successfully constrained.
The panellists discussed the fine line between resistance and overreach when attempting to counter democratic backsliding.[1] While judges ought to be active in upholding and defending the rule of law, as Hilbink outlined, this is not always what we find in practice, it is not always done well, and it is not always without risk, both to the judges themselves as well as to democratic stability. Furthermore, Daly pointed out that the nature of the threat to democracy is often only vaguely defined, which can make determining the legitimacy of any given form of resistance difficult. Moreover, there is very little by way of frameworks or guidance on the parameters of legitimate resistance. This can lead to judges engaging in outreach activities where they step outside their traditional roles and take over the operations which are normally performed by NGOs and human rights activism-oriented institutions, as observed by Kubal. Such outreach is even more visible at the level of supranational courts, which are increasingly forced to address domestic issues relating to the separation of powers. Šipulová added that judicial resistance is sometimes used by compliant, corrupt or otherwise inefficient judges in order to resist structural change, which makes it increasingly problematic to defend judicial resistance as inherently virtuous and commendable.
In spite of the pitfalls, however, there are plenty of examples of successful judicial resistance. Hilbink drew attention to various South American cases, while Kubal referred to two recent studies, one on Ukrainian judges adjudicating successfully in illiberal conditions,[2] and the other on Polish judges exercising their agency by appealing directly to the European Court of Human Rights in order to protect their judicial independence.[3]
The panellists were especially keen to point out the importance of terminology. While the public expects the judiciary to be apolitical—and this is how judges typically wish to be perceived—an apolitical judiciary often leads to a disconnected, ineffective and irresponsible judiciary, as emphasised by both Hilbink and Daly. Indeed, Šipulová argued that in contexts of democratic backsliding, judges are required to be political insofar as their role is that of protectors of the Constitution. Rather than striving to be perceived as apolitical, judges ought instead to be impartial and nonpartisan. Furthermore, the panel agreed that the term populism is too easily branded as negative. Instead, drawing on her recent article, Hilbink explained that populism should be seen as one end of a spectrum of performance with technocracy on the other end.[4] While the extremes are to be avoided, context determines whether the judiciary’s discourse ought to be more populist or technocratic at any given moment, with a healthy dose of populism making the law understandable and accessible to the public, especially in times of democratic backsliding. It is when judges’ discourse becomes centred on the person, rather than the law, that we begin to approach problematic levels of judicial populism.
The panellists then reflected on the role of judges in rebuilding public trust in the judiciary, concluding that it is very difficult for the judiciary to attempt to influence public perception. While judges often wish to take action, the approaches have not always been productive. As Šipulová noted, judges often struggle to identify the correct audience with whom to communicate for maximum effect: rather than speaking directly to the public, the judiciary ought to diversify their communication to include academia, the media, and other legal professionals. Hilbink added that the general population does not distinguish between the various state institutions—their opinion of the judiciary is merely a reflection of their opinion of the state as a whole, and there is no data to show that action on part of the judges can improve this opinion to any significant degree. Finally, as Daly pointed out, judges will always be seen as elites in some degree or other. This is a gap that cannot be completely bridged and will always be reflected in public opinion.
The roundtable concluded with the observation that it is too soon to tell what the long-term effects of judicial resistance are. Even where the short-term effects have been positive, times and context change, and what worked at one point in time or in one context may not work at another. Future studies will reveal how sustainable recent success stories of judicial resistance will be in the long run, and hopefully lead to an improved understanding among the judiciary on best practice in upholding the rule of law through resistance in the context of democratic backsliding.
[1] See Katarína Šipulová. 2025. ‘The light and dark side of judicial resistance’, Law & Policy, 47, n.p.
[2] Agnieszka Kubal and Hanna Oliinyk. 2025. ‘Inter Arma, Judicialis: Legal Bricolage and the Agency of Ukrainian Judiciary in Wartime’, Social & Legal Studies, online first, 1–24.
[3] Agnieszka Kubal. 2024. ‘Judicial relational legal consciousness: authoritarian backsliding as a catalyst of change’, Journal of Law and Society, 51 (Suppl. 1), S45–S65.
[4] See Lisa Hilbink. 2026. ‘Judicial Populism: A Conceptual and Normative Enquiry’, Law & Social Inquiry, 51, 46–78 (p. 56).