A. Introduction
Attacks on judicial independence come in many forms. Some are vulgar, awkward, and often end as clumsy and ham-handed efforts. Others are systemic, undermining the legal structures designed to ensure independence. Still, others are insidious efforts designed to undermine the public trust underpinning an independent judiciary. This article will compare recent attacks of all three kinds and discuss their likelihood of success.
The vulgar efforts are direct interferences with particular judges in particular cases and issues. A state official, perhaps a minister, approaches a judge with a request/demand that the judge rule on a specific case as the government would wish the judge to rule. It could be, for example, to produce a political result that gives the government more power, or it could be a financial result favoring a state official or some friend of the official. The efforts also appear offensive, as the actor carrying out such an attack seems like he or she cannot gauge the situation. It is an attack that applies direct pressure to the recipient, with full knowledge of the immorality or illegality of the action. If the formal institutions are stable, such an attack seems more clumsy than dangerous. These attempts may produce the interferer’s desired result but are unlikely to do severe, long-lasting, or widespread damage to a country’s judiciary. Counteracting a vulgar attack may even produce gains in judicial independence when the efforts become known to the public and spark public outrage. Alternatively, if the country’s democratic institutions are weak, the consequences of an isolated incident may produce serious harm.
The systemic attacks aim for a structural change that enables the government to control or heavily influence future judicial outcomes. Sometimes, such changes masquerade as legitimate judicial reform measures. Systemic attacks are effective at damaging judicial independence structures and, unless political change comes, can have long-lasting, devastating effects on judicial independence. Nevertheless, if the ruling party changes, as it often does in Central and Eastern Europe, the systemic damage can be undone and judicial independence restored.
The insidious efforts may be the most dangerous and have the most long-lasting effects. Every successful judiciary, and the country it serves, depends on public trust. If the insidious attacks succeed in undermining public trust in the judiciary, even political change may not put Humpty Dumpty back together again. These are attacks directed at the legitimacy of the judiciary. The political actors leading these attacks are first aiming their rhetoric towards the public, claiming that if the political actor’s promises are not delivered, it is the fault of the judges who stand against any positive change. Meanwhile, the political actors seek to maximize their own power by diminishing the public confidence in the judiciary.
In recent years, efforts to attack and undermine judicial independence have been evident. Here we will briefly compare those efforts in Czech Republic, Slovakia, Poland, Hungary, and the U.S.
Section B starts with distinguishing between independence as a personal trait and a structural requirement, where the latter is in our focus. Moreover, the concepts of independence and accountability are explained following with the cases of incorrect application of accountability that constitutes an attack on the independence of the judiciary. Section C presents the first kind of attack—the vulgar, which ends clumsily or devastatingly. An example of such an attempt to intervene in the judiciary comes from the Czech Republic and Slovakia. Section D presents the second type of attack—the systemic, as when the parliamentary majority intervened in the judiciary in Hungary and Poland. Finally, section E presents the third kind of attack—the insidious, which is explained through the U.S. case.
B. Judicial Independence and Accountability: Background
Scholars and key state actors often disagree about the quintessential meaning and significance of judicial independence.Footnote 1 Moreover, the concept is addressed in various versions. Judicial independence is perceivable, at least in two common connotations. In one version, independence is about a judge’s inner conscience and a commitment to decide cases according to that inner heart—a guarantee of appropriate character and independence of mind.Footnote 2 In the second, judicial independence is about structures that try to insulate judges from the influence of state actors—institutional mechanisms of control within the constitutional structure. This notion of judicial independence will be referred to as structural independence.
The first meaning is especially prominent in judicial codes of conduct. Definitions of independence explicitly rely on this idea of the individual judge’s good conscience.Footnote 3 By contrast, international documents like decisions of the Court of Justice of the European Union (CJEU)Footnote 4, European Court of Human Rights (ECtHR),Footnote 5 and recommendations and opinions of organizations of the European Union (E.U.)Footnote 6 and the Council of Europe (COE) Footnote 7 define independence as broadly focused on structures, not a judge’s inner good character. Both perspectives are essential to judicial independence. The judicial system cannot be fully independent if both categories of independence are not satisfied. A judiciary that is perfectly isolated from political interests cannot succeed without judges who are willing to resist the pressure from actors who want to influence decision-making. As well as virtuous judges cannot resist the commands from a political power if the law recognizes such command as legal. Only if both concepts are fulfilled then is secured the requirement of an independent court, that is structurally, organizationally, and functionally separate from other public authorities, a sovereign court in which impartial judges adjudicate.Footnote 8
While mindful of the “inner good” meaning of independence, this Article is about independence in the sense of insulation from state actor interference in judges’ decision-making. This Article will focus on interventions from outside the judiciary, from the state agents, and their attempts to either reform or attack the judiciary.
Ultimately, what is independence in the judicial sense?Footnote 9 In the narrow—and more precise —sense, independence is about the insulation of a judge’s decision-making from interference by the electorate and by the elected legislative and executive branches. Considered this way, judges in some legal systems are more independent than others. Furthermore, the judge performing decision-making activity must be protected from undue pressure from within the judiciary, where the pressure may come from the hierarchical and authoritarian structures of the courts, thus reducing the autonomy of individual judges.Footnote 10 Independence must, therefore, be secured from outside as well as from within the judiciary.
In academia, it has become a highly debated topic.Footnote 11 The phrase “judicial independence” has gained such an aura that its mere invocation is enough to end some conversations about it. However, as some scholars have recognized, there can be too much judicial independence, and in the absence of sufficient accountability, the consequences can be grave. Such an unaccountable judiciary may lead to “favoring institutional independence of judges (or rather senior judicial officials), to the detriment of individual judicial independence and impartiality of judges,”Footnote 12 up to the point of judicial supremacy.Footnote 13
Therefore, independence is not an absolute value, but like most carefully defined concepts, judicial independence must be used as a matter of degree. Rather than understanding judicial independence as inevitably a “more is better” concept, we can see that there is, indeed, a “right amount of judicial independence,” as Owen Fiss taught decades ago in his work on emerging democracies in Latin America.Footnote 14 Judges should be protected from undue influences. However, the more the judicial power expands and penetrates both politics and society, the more it needs to be checked and held accountable.Footnote 15
For a proper understanding of judicial independence, it is equally necessary to understand judicial accountability.Footnote 16 As in judicial independence, accountability, too, might be portrayed on the level of personality traits and systemic arrangement. Accountability in the former sense exists as a “responsiveness and ‘a sense of responsibility,’ a willingness to act in a transparent, fair, and equitable way. Accountability, used in this more active sense of virtue, refers to substantive norms for the behaviour of actors.”Footnote 17 On an institutional level, judicial accountability works by providing formal and informal instruments that determine standards of answerability for the judiciaryFootnote 18 and the judge.Footnote 19 In this sense, judicial accountability represents either the mechanisms of inter-institutional—inter-branch—accountability, which ensure that no branch prevaricates and overrules the others,Footnote 20 or it encompasses the negative or positive consequence that an individual judge expects to face from one or more principals—from the executive, the legislature, the court presidents, or other actors—if his or her behavior or decisions deviate too far from a generally recognized standard.Footnote 21
The existence of judicial accountability in a correct measure is no threat to judicial independence.Footnote 22 Accountability must find a sensitive balance, rather than contradiction, with independence. Independence and accountability are not necessarily contesting ends but can be complementary means for securing impartiality and, in turn, the rule of law.Footnote 23 This balance shall reflect how the other branches of state power can influence the judiciary, including in selecting new judges, the increase or decrease in judges’ salaries, or the disciplinary proceedings of judges, while still guaranteeing the insulation of decision-making from outside intervention. After all, “[t]he independence of the judiciary, as opposed to that of individual judges, is dependent on the ‘willingness’ of the popular branches of government to refrain from using their ample constitutional powers to infringe on judicial authority.”Footnote 24
What is the aim of this balance? The accountability and autonomy in the administration of justice are crucial to secure non-interference in judicial decision-making but still having instruments to sanction arbitrariness in decision-making. The goal is to have both an impartial and legitimate judiciary. Properly understood, judicial independence is a beautiful thing—an essential element of a just and prosperous nation.Footnote 25 Abused or improperly understood, judicial independence is a tool of corruption and injustice.Footnote 26 The same applies to accountability. When set correctly, it leads to trustworthy courts, while when incorrectly, it leads to the subservient and obedient judiciary.
The complex structure of judicial independence and accountability can, in principle, be explained by the structure of the normative goals we wish courts to serve.Footnote 27 Therefore, independence and accountability are not themselves goals but instruments for furthering other values, such as guaranteeing a fair trial or public trust. For the legal system to be effective, it must be trusted by the subjects of law. In a society claiming equality before the law, the arbiter deciding upon the conflict of parties must be impartial. Therefore, securing impartiality is a priority when striving for a working legal system, with subjects who voluntarily follow the rules because they trust the legal system’s fairness. Still, what is more crucial than the impartiality of the system is the appearance of impartiality in the eyes of the subjects of law.Footnote 28 Therefore, the system must be structured to provide enough assurance to the subjects that another party’s arguments would not prevail only because of their influence on the arbiter when they turn to the court. No one stands above the law; the arbiter will stay impartial and uphold the rule of law.
For new democracies, where rule-of-law institutions are relatively new and achieving a balance between judicial independence and accountability is still in process, attacks and reforms may resemble one another in the early stages. The political power represented by parliament and an administration may be tempted to maintain control over the judiciary. Such control assures that the courts will accept their policies. There is a temptation toward unaccountable administration, mainly if the ambitions of administrations are on fringes or clearly against the law or constitution. Such an effort of the political branches leads to “dikastophobia”—a dangerous populist strategy to prevent judges from controlling the executive and legislative powers under judicial authority.Footnote 29
What, then, is that balance of independence and accountability? Where does the political effort for public good, efficacy, and trust in the judiciary fade into avoidance of political majority to be held accountable? Moreover, what action constitutes valid criticism distinguished from an attack on the independence of the judiciary? Any status quo change that establishes more accountability instruments for judges appears to be a sign that something sneaky might be taking place. Though, some accountability is necessary for promoting public trust. Other instruments of accountability are necessary for the effective administration of justice.
The attack would then be defined by the intention to interfere with the court’s impartiality and avoiding accountability for the activities of the administration or its allies. The various types of attacks use different instruments for interfering with impartiality. The vulgar attacks put pressure on a particular judge deciding a case of interest, the systemic attacks attempt to rewrite the rules of the game, and insidious attacks aim to delegitimize the game itself.
This Article explores changes in Hungary since 2010, in Poland since 2015, and the recent interferences in Czechia, Slovakia, and the U.S. in recent years. Three decades after the fall of state socialism, all four Central European countries face similar problems with the backsliding of the rule of law, but we may observe different ways that actors have attempted to take control over the judiciary.Footnote 30 In the U.S. experience of democratic backsliding became more prominent during the presidency of Donald Trump.
C. Vulgar Attacks
I. Czech Republic: When the Brute Manners Seem Clumsy
In its 2020 report, Freedom House concluded that the Czech Republic is a parliamentary democracy in which political rights and civil liberties are generally respected.Footnote 31 Still, as in the whole region of Central and Eastern Europe (CEE), the populist movement is on the rise.Footnote 32 The Prime Minister’s political party ANO causes “democratic backsliding”Footnote 33 and “democratic decay.”Footnote 34 He prefers to “run the state like a firm,” implying that checks and balances, as well as complex procedural rules, are nothing but a nuisance.Footnote 35 The Czech Republic has seen “the emergence of new parties with some characteristics of populism, but they lack the nationalistic, authoritarian, and anti-liberal streak seen elsewhere. Instead, these parties have embraced technocratic and entrepreneurial solutions.”Footnote 36 The situation differs from that of Poland and Hungary. The public distrust towards government is noticeableFootnote 37 but not so strong as to turn the public toward non-democratic alternatives.Footnote 38
Unlike in Poland and Hungary, where institutions were attacked after Fidesz and PiS (Law and Justice Party) rose to power, the political rise of Andrej Babiš and ANO has undermined already weak informal liberal democratic institutions in areas such as financial transparency, conflict of interest, manipulation of the state administration and accountability to the media.Footnote 39 First, the accumulation of the Prime Minister’s economic power and ownership of media happened before he entered politics. Second, the influence of Babiš in the economy and the media served as a substitute for—or an alternative to—the political party and civil society structures built by Fidesz and PiS. Third, this power has accumulated in the hands of one individual, Babiš. Fourth, the type of populism that Babiš and ANO have used to appeal to voters is more technocratic than nationalist; it is organized around the fight against corruption by an establishment elite cabal.Footnote 40 This type of leading government politics, called technocratic populism, rejects vertical and horizontal accountability.
This shift began in 2013 when Babiš was a junior partner in Prime Minister Sobotka’s government, and in 2017 Prime Minister Babiš’s government continued to undermine the accountability of political power.Footnote 41 This led to a wave of protests in 2019, from April to June and again in November, calling for the resignation of Babiš for his role in a corruption scandal involving European Union subsidy fraud, a scandal nicknamed Stork’s Nest. The protests were the largest in the Czech Republic since the Velvet Revolution.Footnote 42 The uproar intensified after the abrupt resignation of the minister of justice after the police recommended the prosecution of Babiš. The subsequent appointment of Marie Benešová as the new justice minister raised concerns over possible attacks on the independence of the judiciary. Furthermore, Benešová’s appointment was accompanied by rumors in August 2019 about the potential reform of the prosecutor general’s office, which was the main force behind the Babiš investigation.Footnote 43 In September the state attorney halted the prosecution of Babiš for his alleged involvement in the Stork’s Nest scandal. Though the case was reopened in December, public protests voiced disappointment at handling the case.Footnote 44
Several aspects of the situation are noteworthy, particularly the responsive civil society and the strong distrust held by the public toward branches of the state that hold political power. Even though the ANO movement is characterized as populist and Babiš has been continually accumulating power, no systemic attack on the judiciary has taken place. Despite the populist shift in politics, any attempts to attack the judiciary have appeared more clumsy or vulgar than democracy-threatening. The attacks were perpetrated with brute force or direct command. When the attacks are against a stable institutional framework, they appear more like an awkward attempt than a real threat. In the stable institutional framework of the rule of law, such an attack is reminiscent of a bully, who is considered rude and dishonest.
When such attempts are unsuccessful, they represent offensive, brute force used against a judiciary to further one’s own interest.Footnote 45 Whether putting pressure on a member of the judiciary ends as a misguided attempt or actual corruption is critical. The difference can be seen with the former Czech Supreme Court President Baxa, who revealed that in 2019 he was approached by then-president Zeman’s advisor. Baxa was offered a nomination for a seat at the Constitutional Court of the Czech Republic if he assured that the Supreme Administrative Court delivered a decision for the president.Footnote 46 Zeman’s advisor also approached a judge of the Czech Constitutional Court with a similar offer.Footnote 47
The Czech judiciary has stayed mostly independent, though its multi-layered composition has led to some problems.Footnote 48 In comparison to other countries in the CEE, the Czech judiciary is in good shape. While Czech politics are moving toward a backsliding of democratic values, this backsliding does not seem to touch the courts. We will look at the pillars of that stability.
1. Public Trust
The Czech judiciary enjoys high public trust in comparison to other countries in the region. The perceived independence of courts and judges among the public has risen in recent years to fifty-six percent.Footnote 49 The same criteria surveyed among companies is at forty-four percent. The Supreme Court enjoys the trust of seventy percent of the public, while the Supreme Administrative Court and the Constitutional Court have the trust of sixty-eight percent and sixty-seven percent of the public, respectively.Footnote 50
Such high trust in judicial institutions is quite exceptional within the CEE, and the Czech Republic, unlike other Visegrad countries, never applied any of the proposed models for the Council of the Judiciary.Footnote 51 Other countries from the CEE region, like Poland, Hungary, and Slovakia, that decided to build an independent body representing either autonomy or legitimacy of the judiciary either face much lower confidence in the judiciary or substantial interference from political power.Footnote 52
Even though the Czech judiciary enjoys the highest public trust in the region, international organizations have raised some objections to the country’s justice system. One objection on the appointment of the presidents of the courts and the selection of the judgesFootnote 53 was partly solved with a change in rules for promotions to the Supreme and Supreme Administrative Courts. The selection of judges is laid down only on the level of governmental regulation.Footnote 54 Other objections included the absence of a code of ethics for judges, the lack of detail in provisions on judges’ extra-judicial activities, and the absence of the appellate level in disciplinary proceedings of judges.Footnote 55 The World Bank objected to the non-existence of a court dedicated to hearing commercial cases or a small-claims court, the use of a manual process for assigning cases, the lack of overall standards for the timing of key court events and adjournment, the lack of electronic case management tools for lawyers, and the irregularity of publishing judgments.Footnote 56 In other words, no serious breakdowns of the independence have happened yet in comparison to other CEE countries.
2. Ministerial Model
The Czech Republic did not amend the institutions in place and continued with its ministerial model of judiciary administration after accession to the E.U. The system has its roots in Austro-Hungarian tradition, and as Kühn writes:
[T]he Czech Republic has maintained the most extreme system of centralized management of the courts, performed by the Ministry of Justice . . . the old-fashioned and problematic system is defended just because of its age. In this view, the system has achieved its inherent value because it existed prior to the advent of the communist regime.Footnote 57
The law on courts and judges in the Czech Republic establishes judicial power by independent courts.Footnote 58 Judges have tenure, with strict limitations on the termination of their office. The selection of the candidates for judicial office depends on the presidents of regional courts, who submit the proposals for new judges to the minister of justice. The justice minister forwards the candidates to the president of the country to be appointed, with confirmation needed from the prime minister or another cabinet member.Footnote 59 The justice minister and court presidents are the traditional leaders in the Czech court administration.Footnote 60 Some have pointed out deficiencies in this model.Footnote 61 There is a lack of separation of power, with possibilities for manipulation by the ministry of justice .Footnote 62 Furthermore, the lack of a formally designated representative body of the judiciary, when the highest instance of the administration of the justice system is the justice minister, leads to the option of contacting the representatives of the courts based on justice minister’s preference for cooperation.Footnote 63 This criticism is found in many international documents and academic writings favoring a judicial council model and structural independence.Footnote 64
While on paper the ministerial model may seem dangerous for the independence of the judiciary, the situation has been different in practice. The other branch of criticism of the Czech model is aimed at the practical experience with the model, and it is based on the argument of the ineffectiveness of the Ministry of Justice due to the fluctuation of ministers, a lack of competence, unaccountability, and missing dialogue with the representatives of the judiciary.Footnote 65 What unites both criticisms of the ministerial model is an argument against the “only ‘correct’ model of judicial self-administration”Footnote 66 and the controversial experience of the neighbors with Euro-model type of the Council for the Judiciary, particularly in Slovakia.Footnote 67
The bridge between the justice minister and the presidents of the courts is necessary for a judge’s appointment, transfer, or promotion and other personnel matters.Footnote 68 It seems like a balanced relationship. Nevertheless, with a closer look, the presidents of the courts have a much more solid position in this relationship than the justice minister does.Footnote 69 In less than twenty-eight years, the Czech Republic had a total of twenty-one terms of justice ministers,Footnote 70 while court presidents usually serve their whole term. This creates a substantial information inequality in favor of the court presidents, and it institutionally supports the stability of the judiciary.
A strong position of judicial power is visible in the example of Minister of Justice Pospíšil’s reform of disciplinary proceedings against judges in 2008. Amendment 314/2008 on the law on courts and judges was supposed to be a hammer on judges, but it did not bring the expected outcomes. On the contrary, statistically, it brought fewer disciplinary proceedings against judges.Footnote 71 In 2007 Pospíšil introduced the proposal for the reform of disciplinary proceedings of judges, and in 2008 the bill passed the National Assembly.Footnote 72 The bill created strong disagreements among judges. It heralded a significant change of disciplinary proceedings by moving the jurisdiction for disciplinary trials from higher courts and the Supreme Court to the Supreme Administrative Court. This move changed the double-level proceeding into single-level, without an option to appeal the decision and strengthen the representation of non-judges in disciplinary panels. This amendment of the law on judgesFootnote 73 was challenged at the CCCR, which decided that the law does not violate the constitution.Footnote 74 Still, this amendment did not have its intended effect.Footnote 75 It is more likely to compel the opposite. The number of disciplinary proceedings decreased, and sanctions became softer.Footnote 76 “Pospisil’s attempt to gain some cheap populist points in the campaign against fake judicial collegiality did not bring any outcomes.”Footnote 77
Another attempt by the Ministry of Justice to strengthen the influence of the justice minister was announced in 2016, this time focusing on changing the rules on selecting judges and preventing candidates without trial experience from entering regional courts.Footnote 78 Due to strong opposition from the judiciary, the reform was postponed indefinitely. Under the second government of Babiš, the fear of interference into the judiciary resurfaced when Marie Benešová was appointed as Minister of Justice in 2019. She had been perceived as a strong supporter of President Zeman’s interests and clashed with the prosecutor general, who oversees the ongoing investigation into Babiš and his family. In 2019 Benešová introduced a new judiciary reform that would shorten the term of the current prosecutor general, thus enabling the PM to nominate a “friendlier” figure.Footnote 79 Experts and the judiciary saw the move as political interference and an attempt to curtail the judiciary’s independence. “The reform was dead on arrival—rejected by the judiciary, the public, and the parliament.”Footnote 80
Every attempt in recent years at any type of interference with the judiciary has fallen in the face of the judiciary’s strong resilience. All these outcomes show who the real key player is in the Czech administration of the courts. As Kosař points out:
[T]he most important phenomenon since the Velvet Revolution, which explains this puzzle, is the rise in power of court presidents who play an intriguing twin role in ensuring judicial independence… Czech court presidents have managed, step-by-step, to erode the Minister’s sphere of influence and have themselves become the most powerful players in the Czech judiciary, able to wield the most effective ‘stick’ (disciplinary motion) and ‘carrot’ (promotion) against individual judges.Footnote 81
Court presidents of higher courts seem to fill that gap of the missing single representative body of the judiciary, and quite successfully, they together are the main actors in securing judicial independence.
As Blisa and Kosař conclude:
The court president as a judicial leader is not as strong as Russian court presidents because he is not a boss who may to a great extent affect the well-being of rank-and-file judges. However, she still has not only broad ambassadorial and media power, but also has a major say in case assignment and panel composition (administrative power). In addition, she usually wields significant jurisprudential power through setting the rules of the debate opinion assignment and shaping the law, has major say over judicial careers, either in selecting and disciplining or in promoting.Footnote 82
This bridge between the justice minister and the presidents of the courts is dynamically balanced, adjusting itself to new situations. For instance, in 2008 the Czech Parliament introduced a non-renewable term for court presidents that reduces their influence within the Czech judiciary.Footnote 83 Possible favoritism leading both ways between the justice minister and presidents of the courts was confirmed by the decision of the CCCR, and the presidents may not be appointed to the positions repeatedly. This might prevent a situation in which the president would try to comply with justice minister to secure their position in the next term.Footnote 84
Three events from 1999 to 2006 show the dramatic change in the position of the presidents of the courts. In 1999 Justice Minister Otakar Motejl dismissed five of eight regional court presidents. Apart from the critique of the remaining president, this event spurred no significant outrage.Footnote 85 The 2005 dismissal of a president of a district court was declared unjustified.Footnote 86 While the dismissed court president challenged that the minister’s decision failed to meet legal requirements, the minister claimed that the court president is a public servant and that her rights were not infringed. The Municipal Court annulled the decision of the justice minister.Footnote 87
Finally, in 2006, then-President Vaclav Klaus dismissed the Supreme Court President Iva Brožová, who challenged the decision. The CCCR claimed it was unconstitutional when the representative of the executive branch dismissed representatives of judicial power.Footnote 88 Since 2006 neither the president nor the justice minister has been allowed to dismiss a court president. The court presidents are no longer accountable to the justice minister, and the threat to independence hidden in the justice minister’s position of “transmission belts” has been reduced.Footnote 89
These battles with executive and judicial representatives led to a strengthening of the position of the court presidents. The minister of justice came to view them as partners rather than servants. Pavel Rychetský, the former vice-prime minister (1998–2003) and minister of justice (2002–2003) put it frankly when asked, “What is the personal politics of a minister of justice?” and answered, “The one that fulfills the wishes of the regional court presidents.”Footnote 90
This development led to a fragile balance between the power of court presidents and the justice minister. The new balance of power has had three noticeable effects. First, court presidents began to unite across hierarchical layers and across branches of the Czech judiciary to create greater leverage vis-à-vis the minister of justice. Second, both the minister of justice and court presidents try to exploit their powers fully while waiting for the other side to make mistakes. Third, a side-effect of this continuing struggle is the increasing public scrutiny of the actions taken by the Ministry of Justice and court presidents.Footnote 91
Such a balance provides a relatively dynamic and responsive system that discourages sudden changes. The power is dispersed across political and judicial actors. As mentioned, while at first sight, the ministerial model appears as a system left to the mercy of the justice minister, it seems to be the opposite in practice. The Czech example shows that a judiciary can enjoy a reasonable level of public confidence even without adopting a solid model of judicial self-government or establishing a judicial council.Footnote 92
Perhaps this tension between the court presidents and the justice minister does not allow any actors to attack the other branch. Such a strong position of the presidents of courts, upheld by the public trust, enables the judicial representatives to resist even potential attacks that are not systemic in nature—changing the legal framework of the structure of the judiciary or dismantling the perception of the legitimacy held by the judges—or focused on gaining immediate power. If attacks are resisted and revealed to the public, the offender appears clumsy. When an attempt to interfere with judicial impartiality occurs and is exposed as such, the defending institutions become more vital as they display their resilience.
II. Slovakia: When the Brute Manners Lead to Loss of Legitimacy
Unlike in the Czech situation, where informal interferences ended clumsily, in Slovakia the situation became one of widespread judicial corruption. In August 2019 Slovak newspapers first published news about the communications of the infamously corrupt businessman Marian Kočner using the Threema application. After seizing Kočner’s phone, the Slovak police and the Europol decoded encrypted messages that Kočner had sent through Threema in 2017 and 2018. Transcripts of the conversations that appeared in the press suggested far-reaching manipulation of court cases in Kočner’s favor, and communications published later detailed instances of inappropriate communication between the judges and Kočner. In sum, nineteen judges were accused of corruption, and several advocates are facing charges of corruption and obstruction of justice.Footnote 93
The judges involved in the allegations were delivering judgments on demand. Some of them did so for financial gain, while others acted under the threat of pressure. After the revelations of 2019 and 2020, the Slovak public learned that organized crime bosses, like Kočner, have had a high level of control over a cadre of Slovak judges through the medium of the state secretary and some court presidents.Footnote 94 Although the attacks on judges have come from a state actor—the state secretary—the initiative is from the organized crime world. Further, the state secretary is herself a judge by training and career, even having briefly returned to a judicial position after leaving the Ministry of Justice under heavy scrutiny.Footnote 95
The Slovak situation is elaborated in detail in Peter Čuroš’ piece Panopticon of the Slovak Judiciary later in this Special Issue.
D. Systemic Attacks
I. Poland
The situation in Poland is now well documented.Footnote 96 This chapter will only touch on the most salient events in summary form rather than recount the entire series of events since the PiS government won power in 2015. Before winning a majority of parliamentary seats in the 2015 election, PiS announced a significant piece of its philosophy— “legal impossibilismus.”Footnote 97 This concept essentially means that major reform cannot be undertaken in post-communist countries because of the entrenched interests and power of various elites, including judges.Footnote 98 Adherence to this philosophy set the stage for PiS’s efforts to disempower the courts, ostensibly to make its reforms possible.
The PiS critique of the judiciary was harsh, and, in part, was designed to diminish public trust in the judiciary to such a degree that its disempowerment laws would not be too vehemently opposed. The party retained a Washington, D.C. consulting firm, White House Writers Group, for an English-language campaign with five objectives, including the following:
Explain that the judiciary reform in Poland is crucial for the elimination of corruption, impunity and delays, which make access to justice difficult for thousands of Polish citizens every year. It is also designed to restore the checks and balances, eliminated by the Soviet-style judiciary, which the newly independent Poland inherited over a quarter of a century ago.Footnote 99
Justice Minister Zbigniew Ziobro said:
The judiciary had 25 years to purify itself and conduct reforms. And they have done nothing, so they lost their opportunity. Today the democratically elected politicians need to change it. Repair of the judicial system is the most important issue for which the voters elected us. I will not retreat in the battle for justice and fairness in Poland, and I will fulfill the program whose objective is that the justice system is more protective of honest people.Footnote 100
The government saw that some elements of the judiciary could be easily and predictably challenged and criticized. The government used these elements to justify a wide array of legislative control over the existing judiciary, anticipating that public outcry would be muted by the level of public mistrust of the judiciary generally and of judges, particularly. The government’s public influence campaign magnified the mistrust of the latter.
Unlike in Hungary, where the majority in the single-chambered National Assembly enjoyed a constitutional majority, in Poland’s two-chambered Parliament, the United Right acquired the only plain majority in elections 2015 and 2019.Footnote 101 Therefore, the parliamentary majority in Poland lacked the numbers necessary to change the constitutional framework and had to follow up with reform via legislation, decisions of lower chamber of parliament, presidential appointments, and appointments of the government and minister of justice.Footnote 102
With a template for what would be attacked and reformed, the Polish majority in Parliament led the Constitutional Tribunal reform, with influence in the courts’ administration from the Supreme Court (S.C.) to ordinary courts.
1. Constitutional Tribunal
The Constitutional Tribunal was targeted first to ensure that subsequent changes could be enacted with less scrutiny.Footnote 103 The Polish case started with a quite momentous court-packing strategy. As the ruling majority did not have a constitutional majority, it could not increase the number of judges.Footnote 104 The timing for changing the judges of the tribunal was not ideal, but with help from President Duda, it was used to the party’s advantage.
Earlier, on June 25, 2015, the Civic Platform (C.P.) government changed the law under which the tribunal judges were elected. Although the existing rule had been that the Parliament could only fill a seat on the final day of a judge’s term, the new rule stated that the Parliament could elect judges months ahead of an actual opening on the court.Footnote 105 Before the Parliamentary election of 2015, the governing coalition led by C.P. possessed the majority to elect the candidates to replace five judges of the tribunal, with term expirations on November 6th—three seats—and December 2nd and 7th —two seats. The term of the seventh Parliament expired on November 11th. The Parliament elected five candidates to tribunal seats on October 8th, but the president did not appoint them. One of the first steps of the newly elected eighth Parliament was to pass a law on the tribunal to reverse the previous government’s nominations of those five candidates.Footnote 106
Subsequently, the Sejm, the lower chamber of the Parliament, revoked the former election of the candidates and nominated its own candidates, who were immediately appointed to the position of tribunal judges by the president.Footnote 107
A tribunal ruling from December 3, 2015Footnote 108 claimed that the amendment of the law of the tribunal from November 19, 2015 was unconstitutional, and the tribunal ordered the president to appoint three judges that the seventh-term Parliament had elected on October 8 to replace the judges whose term ended in November. The seats of the judges leaving the tribunal in December were to be filled by the newly elected eighth Sejm. Neither the president nor the Sejm followed this decision, or one that came a week later.Footnote 109 A struggle over three seats on the court was waged between PiS and the president of the Constitutional Tribunal.Footnote 110 Eventually, other changes to the law regulating tribunal procedures allowed a PiS devotee to assume the position of acting court president, paving the way for the three PiS-nominated judges to take seats.
When the parliamentary majority refused accountability, the fate of the tribunal was sealed. The international reaction to the court-packing scheme has attempted to stop Poland’s attack on the rule of law.Footnote 111 The decision of ECtHR in XERO Flor v. Poland Footnote 112 responds to the takeover of the tribunal. Meanwhile, the Commission and the CJEU have dealt with another wave of attacks on the Polish judiciary. The initial step of the Polish parliamentary majority in 2015 may have hindered the legitimacy and legality of the Polish tribunal, as the ECtHR does not recognize as lawful any of the three judges elected by the eighth-term Sejm that replaced judges nominated by the seventh-term Sejm in the nomination for the tribunal.Footnote 113
2. Changes on the Council for the Judiciary
The amendment of the normative and personnel framework of the Constitutional Tribunal served as the basis for further changes in the justice system. After securing a favorable outcome for constitutional review, the parliamentary majority moved to its next step. With the proclaimed ambition of reforming the judiciary to enhance its democratic accountability,Footnote 114 the PiS set an agenda that the international audience considered more as an attack than a reform: The changes “enabled the legislative and executive powers to interfere severely and extensively in the administration of justice and thereby pose a grave threat to the judicial independence as a key element of the rule of law.”Footnote 115
The next step was “the politicization of the Council for the Judiciary (Krajowa Rada Sądownictwa, KRS) and an attempt to take over the personnel and organization of the Supreme Court.”Footnote 116 As the KRS is supposed to safeguard the independence of courts and judges,Footnote 117 the takeover of this body is essential to seeking control over the judiciary. The KRS has a strong position in the recruitment and promotion of judges.Footnote 118 Such an acquisition brings benefits long after the takeover, as it shapes lines of decision-making that can last for years.
The Polish Council for the Judiciary consists of twenty-five members.Footnote 119 Before 2017,Footnote 120 fifteen of the twenty-five members were elected by their peers from a pool of judges. Four others were representatives of the Sejm, and two were representatives of the Senate. The President appointed one member, and the President of the Supreme Administrative Court, the President of the Supreme Court and the Minister of Justice were members.
Since the reform of 2017,Footnote 121 the fifteen members that had been elected by peer judges were now elected by the Sejm. This created a strong imbalance. Previously, seventeen out of twenty-five members of the KRS were chosen from within the judiciary, but after 2017, twenty-three out of twenty-five members were selected by the political branches of power.Footnote 122 Due to such a change in representation, the European Network of Councils for the Judiciary (ENCJ) suspended the KRS in September 2018 and blocked its voting rights.Footnote 123
3. Supreme Court
The Supreme Court (S.C.) is usually next to face reform or attack. In Poland, the S.C. acts as a court of “extraordinary instance,” deciding in appeal proceedings and providing uniform law interpretations.Footnote 124 Moreover, its formal but also practical position of authority within the judiciary is significant, and it enjoys the respect of both judges and citizens. When the political power seeks greater control over the third branch, it is logically not in its interest to be worried about resistant voices from high positions. The quick court-packing strategy, although to some extent a painful change, reduces the chances of constant critique.
A 2017 law on the Supreme Court lowered the retirement age limit from seventy to sixty-five.Footnote 125 This step had significant consequences, for it signaled the end of service for almost forty percent of the judges on the Supreme Court.Footnote 126 It also received a clear response from the CJEU,Footnote 127 which concluded that the policy constituted discrimination.
In line with the Hungarian strategy, the number of seats of the S.C. was increased by PiS in 2017.Footnote 128 Unlike with the smooth dismissal of the president of the S.C. in Hungary thanks to a constitutional majority, the Polish First President of the SC Małgorzata GersdorfFootnote 129 fought the parliamentary majority’s attempts to replace her.
Moreover, the law on the S.C. created two new chambers that the KRS filled right after the alteration of its member composition. These chambers were the Disciplinary Chamber (D.C.) and the Extraordinary Control and Public Affairs Chamber. The D.C. was supposed to deal with disciplinary cases of Supreme Court judges and appeals of the disciplinary cases of judges from ordinary courts. The fact that the members of the D.C. were selected by the KRS, of which ninety-two percent of the members were elected by the Sejm, was grounds for the Commission to bring action against Poland before the CJEU in 2019. The CJEU responded to the preliminary question of the Labor and Social Insurance Chamber (LSIC) of the Polish Supreme Court on whether the D.C.’s independence and impartiality as a court was doubtful.Footnote 130 The CJEU confirmed the principle of the primacy of the E.U. law and claimed that national courts had the right and had the obligation not to grant jurisdiction to a court that does not fulfill the requirements of independence and impartiality. The CJEU openly stood by the Polish judges seeking help from outside their country.
After the judgment on the preliminary question, the LSIC of the S.C. decided that the D.C. does not fulfill the requirements for being an independent and impartial court.Footnote 131 Despite this decision, the D.C. kept deciding on disciplinary matters, leading the European Commission to bring action against Poland to the CJEU, seeking:
[S]uspending, the provisions constituting the basis of the competence of the Disciplinary Chamber of the Supreme Court to rule, both at first instance and on appeal in disciplinary cases relating to judges, and refrain from transferring cases pending before the Disciplinary Chamber to a formation of the court which does not satisfy the requirements of independence.Footnote 132
4. Ordinary Courts
The ordinary courts were not exempt from PiS modifications. The retirement age of the ordinary courts’ judges and the retirement age of the prosecutors was newly set to sixty-five years for male and sixty years for female judges. The previous law on ordinary courts stipulated the age limit to be sixty-seven.Footnote 133 The new law also gave the justice minister power to decide on extending a term.Footnote 134
As with the Supreme Court case, the European Commission brought actions before the CJEU for a failure to fulfill obligations. Moreover, in a similar situation to the case of the S.C., the CJEU concluded that the provision on various retirement ages constituted discrimination, as well as a failure to provide sufficient remedies to ensure compliance with the right to effective judicial protection in areas covered by E.U. law.Footnote 135
As of 2016, the justice ministerFootnote 136 also holds the position of the public prosecutor general, and this superposition’s strengthFootnote 137 raised concerns. Behind the claim of further accountability of the Public Prosecutor’s Office might easily be a goal of exerting political influence over public prosecutors.Footnote 138 The justice minister was also granted the power to dismiss the presidents of lower courts and appoint his own chosen candidates. He received the power to assign new judges, to establish divisions and branch divisions of courts, to establish or abolish courts, to determine territorial competency areas, to authorize transfers of judges to other courts or reassignments to other state institutions, to request disciplinary proceedings against a judge, and to launch an appeal against decisions of a disciplinary court.Footnote 139 The justice minister dismissed nearly 160 presidents and vice presidents. A powerful card was put in the hands of the prosecutor general/minister in the form of an institution called an extraordinary appeal, which is a judicial review of final decisions, including decisions issued before the validity of the law. The claimed goal of this institution is to “ensure compliance with the rule of law.”Footnote 140 It gave the justice minister the power to reopen any case decided in the last twenty years.Footnote 141
If the KRS and Supreme Court reform and the court-packing throughout all the ordinary courts would leave some areas untouched, the next step subordinated the lower courts completely in administrative matters. On December 19, 2019, the ruling majority approved an amendment on the law on Supreme Court and law on ordinary courts, in what became known as the Muzzle Law.Footnote 142 Based on this amendment, disciplinary proceedings can be started against judges who resisted the changes of the judiciary. The amendment bans criticism from a judge that might represent “undermining the principles of the functioning of the authorities of the Republic of Poland and its constitutional organs.”Footnote 143 This amendment also gives the president power to choose and appoint the first president of the S.C.Footnote 144 In 2020 the majority of S.C. judges supported Włodzimierz Wróbel, but President Duda appointed Małgorzata Manowská, a judge he had nominated to the S.C. to take over the office at the request of KRS.Footnote 145
Since the reforms enacted in 2017 and, finally, with the adoption of the Muzzle Law amendment, Poland might be considered a country lacking an independent judiciary.Footnote 146 The Venice Commission commented that the amendment was responsible for “seriously curtailing freedom of speech and association of judges, preventing judges from examining whether other courts within the country are ‘independent and impartial’ under the European rules.”Footnote 147
Despite the international criticism, the Polish judiciary, once regarded as among the most stable and most effective in the region, remains under siege. On the one hand, the constitutional framework has not been changed, as was done in Hungary, and vigorous resistance still exists among judges. On the other hand, it reminds one that “[Kaczynski’s Poland will be in five years Orbán’s state] because [Orbán] ruled Hungary that much longer than PiS [in Poland].”Footnote 148
II. Hungary
The systemic attack on judicial independence in Hungary has been even more profound than in Poland. Armed with a supermajority in parliament, the government has undertaken to amend the constitution.Footnote 149 There is almost no opposition in Hungary, unlike in Poland, where it is still vibrant.Footnote 150 Moreover, the influence of oligarchs is much more substantial in Hungary.Footnote 151
In Hungary, the systemic attack on judicial independence was, in part, also a public relations attack. On the 150th anniversary of the Hungarian parliament’s enactment of a law protecting judicial independence, Speaker of the Parliament László Kövér delivered a shocking keynote address. He began by saying that “150 years ago the question was whether the Hungarian state wants to guarantee the independence of the judges. Today the question is whether the Hungarian judges want to ensure the independence of the state.”Footnote 152
Judicial independence in Hungary has raised the attention of the E.U. and COE institutions since 2010,Footnote 153 and it has continued to be a painful matter for the rule of law ambitions in the E.U. ever since. The situation in Hungary is shaped by the results of the last three parliamentary elections, which took place in 2010, 2014, and 2018, when the political party Fidesz and KDNP (Christian Democratic People’s Party) received enough votes to adopt a new constitution that amends the institutional structure in Hungary. Unlike in Poland, in Hungary it was possible to start with the changes on the constitutional level, which enabled the parties in power to pass amendments smoothly. With a two-thirds majority, Prime Minister Viktor Orbán could create a new structure to support his concept of the “illiberal democracy.”Footnote 154
1. New Constitution
Just one year into its term, the governing coalition amended its inherited constitution twelve times.Footnote 155 Finally, on April 18, 2011, the National Assembly of the Hungarian Republic adopted a new constitution—the Fundamental Law of Hungary. This step might not have been viewed with alarm. The Hungarian People’s Republic adopted the previous constitution in 1949,Footnote 156 and Hungary was the last country of the CEE to have not created a new constitution after the fall of communism.
Nevertheless, the constitution-making process was criticizedFootnote 157 for lack of transparency, omission of civil society from discussions, shortcomings in the dialogue between the majority and the opposition, insufficient opportunities for public debate, and extremely short timeframe for creation.Footnote 158 What raised the concerns of the Venice Commission in 2011 was the number of matters relegated to regulation via cardinal laws,Footnote 159 including issues that do not need such rigidity and should be left for a simple majority political process.Footnote 160 These cardinal laws could lead to “carving in stone” due to their difficult amenability and impossibility of constitutional review.
The structure of the justice system was amended dramatically. For this Article’s purposes, we will present the primary sources and mechanisms of this change. We will focus on three avenues, each of which is connected to the new Fundamental Law and related legislation. The first was a change of framework for the Constitutional Court. The second was the change in personnel and normative framework of the Supreme Court and general courts, and the third was the change in the courts’ administration.
2. Limitation of the Constitutional Court
Hungary has a unicameral system, with the Constitutional Court as the most potent check in the constitutional structure.Footnote 161 Three strategies were followed to limit the Constitutional Court (CC). The first was limiting on what the CC cannot decide or what cannot be referenced in decision-making. Second, a court-packing strategy was used to amend the personnel composition of the CC.Footnote 162 Third, commands were set out to order what must be taken into account by the CC in its decision-making.
The Constitutional Court is limited in referring to its own case law dated prior to January 1, 2012. This strategy of limiting the CC in its decision-making is visible in the fifth paragraph of the closing provisions of the Fundamental Law: “The decisions of the Constitutional Court made before the entry into force of the Fundamental Law are repealed. This provision shall be without prejudice to the legal effects produced by those decisions.”Footnote 163 This fresh start provision made the previous decisions irrelevant for future decision-making and, therefore, the argument by the CC of following any kind of precedent was invalidated. As a result, the CC could decide on a fresh plane in matters of conflict of legislation with the Constitution.
This provision does not ban the use of the same argumentsFootnote 164 as those used in the past, but when accompanied by new judges favoring the interpretation of discontinuity from the old constitution or just favorable to Viktor Orbán, the CC has a solid defense to not be bound by previous case law. Such a strategy of liberating the CC from its history is very effective when combined with a court-packing strategy. In addition to the normative starting point of being free from referencing previous case law, the CC also has judges who are themselves willing to depart from previous case law.
The option of constitutional review of the constitutional acts was in Hungary a marginal question for long years.Footnote 165 Hungarian CC stuck to the doctrine that it does not review the constitutionality of amendments to the Constitution:
Due to the close connection between the provision putting the amendment of the Constitution into force with immediate effect and the provisions that become the normative text of the Constitution as a result of such amendment, the Constitutional Court can’t examine the constitutionality of the provision putting the amendment of the Constitution into force, as it would result in the Constitutional Court exceeding its constitutional scope of competence institutionalized for safeguarding the Constitution, and taking over the scope of the authority of establishing the Constitution, thus it would not only interpret the provisions of the Constitution but necessarily qualify them as well.”Footnote 166 The constitution-making competence supposedly belonged to the National Assembly. In 2012 the CC changed this tradition, deciding, “The Constitutional Court’s obligation to protect the Fundamental Law includes the duty of protecting it as a single and unified document with the normative contents and structure as adopted by the constituent power: as a single and unified legal document, making it unquestionable and stable for everyone.“ Footnote 167 The disapproving reaction from the parliament was swift. In 2013, the Fourth Amendment to the Fundamental Law limited the review of the CC to “the procedural requirements laid down in the Fundamental Law for making and promulgating it.”Footnote 168
Furthermore, the CC’s jurisdiction is connected to the country’s financial situation. The CC is restricted in the review of the Acts on central budget, central taxes, pensions, healthcare contributions, the right to life and human dignity, the right to the protection of personal data, freedom of thought, conscience and religion, and rights related to Hungarian citizenship if at any point the government debt exceeds half of the total gross domestic product.Footnote 169 Before the public debt falls below fifty percent of GDP,Footnote 170 the CC will not decide on compliance of these Acts with Fundamental law.Footnote 171
Court-packing was initiated even before the Fundamental Law came to force. In 2011 the original number of judges of the CC increased from eleven to fifteen,Footnote 172 with four new judges elected by a two-thirds majority of the new government in the National Assembly. In addition, the term of the judges was extended from nine to twelve years, and the retirement age of seventy was abolished. In 2013, eleven out of fifteen judges had been nominated by the ruling coalition of Fidesz-KDNP.
The third strategy was primarily directed toward the general courts, although it affected the CC significantly. In 2018 the National Assembly adopted the Seventh Amendment to the Fundamental Law of Hungary. In addition to creating administrative courts, the amendment also stated that the starting point for judges interpreting the law has to be an explanatory memorandum attached to legislative proposals:
In the course of the application of the law, courts shall interpret the text of laws primarily in accordance with their purpose and with the Fundamental Law. In the course of ascertaining the purpose of a law, consideration shall be given primarily to the preamble of that law and the justification of the proposal for, or for amending, the law. When interpreting the Fundamental Law or laws, it shall be presumed that they serve moral and economic purposes which are in accordance with common sense and the public good.Footnote 173
Issuing binding and politically interpretative guidance to judges fails to insulate them from the politics of the legislature and, thus, presents a significant threat to their independence and impartiality. This measure also reduces the independence of judicial decision-making by restricting judges’ discretion in interpreting the law. Furthermore, the reasoning is prepared by a competent minister or even an individual M.P. and is not part of the law, so it is not a normative act and cannot be subject to constitutional review. Consequently, the governing majority can instruct judges to interpret a law with regard to a political aim that could even be unconstitutional.”Footnote 174
This duty for the ordinary courts puts the CC in a position of deciding on a general court’s decision that is supported with explanatory provisions excluded from constitutional review. Thus, the CC becomes subordinate to the will of the legislator.
3. Kúria and Ordinary Courts
The second in line for dramatic change was the Supreme Court, which reverted to an older name, Kúria, and received a new normative and personnel framework. The strategy for court-packing applied here was opposite that used for the CC. Instead of the age limit being removed, it was lowered. Moreover, rather than bringing in additional judges, the strategy was to dismiss the previous judges before the new ones arrived. The lowering of the age limit from seventy to sixty-twoFootnote 175 caused an exodus of a large number of judges.Footnote 176 The fact that the age limit for judges was decided to be invalid by the CC,Footnote 177 did not stop the reform from succeeding in its intention. In 2013 the amendment of the Act CLXII of 2011Footnote 178 allowed judges to seek compensation or reinstatement, but many of judges dismissed from Kúria were either unwilling to return or had already passed the age of seventy by the time the CJEU had released its decision.Footnote 179 The reform resulted in only a few judicial administrative leaders over the age of sixty-two left in the judiciary after 2012.Footnote 180
A well-known example is the former President of the Supreme Court András Baka,Footnote 181 who was dismissed from the position of the president when the new Fundamental Law came to force.Footnote 182 Furthermore, he could not apply for the position, as he did not fulfill the requirement of serving at least five years as a judge in Hungary. Baka had been a judge of the European Court of Human Rights for seventeen years. The requirement of the five-year term served at a court in Hungary could be perceived as retaliation against Baka for his criticism of the steps of the government toward the judiciary, which was part of his job as the president of the S.C. Footnote 183
4. Courts’ Administration
Finally, the third manner of attacking the third branch was through the courts’ administration. For the strategy of court-packing the Kúria and general courts, it was crucial to control the selection and appointment of new judges, as the old judges were forced out due to the lowered age limit. This part of the chain was supposed to be filled with the president of the National Judicial Office (NJO), which was established by Parliament in 2012Footnote 184 as a one-person decision-making body for matters of recruitment, promotion, management of the court budgets, and disciplinary matters.Footnote 185 The body elected by judges —National Council of Judiciary—lacked any significant power, and the power of the NJO was criticized as unbalanced due to the strong position of the NJO towards judges.Footnote 186 The position of the President of the NJO received international criticism. It was seen as a “crucial decision-maker of practically every aspect of the organization of the judicial system and he or she has wide discretionary powers that are mostly not subject to judicial control.” The NJO cannot be perceived as body of judicial self-government, for its members are elected by the National Assembly.Footnote 187
The unbalanced power over judges, mainly through the appointment of the court presidents and the ability to transfer casesFootnote 188 or regulate judges’ early retirement, became a target of objections. The initial criticism from international bodies encouraged the Parliament to move the NJO to the constitutional level. Footnote 189
In September 2013 the Parliament moved to restrict the president of the NJO in his power and put the office under supervision of the NCJ. However, this happened after “the storm,” which had begun twenty months earlier in January 2012. The changes on the national level in reaction to international objections became even more controversial than before, as they became part of the Fundamental Law,Footnote 190 like the change in the transferring of cases by the president of the NJO.Footnote 191 Even though the power of the NJO was nominally limited, the real power was maintained.Footnote 192 The factual position of the president of the NJO keeps creating tension towards the judiciary, especially to the NJC, and in recent years it has led to a “constitutional crisis.”Footnote 193
Despite facing intense criticism from judges, the judicial association and the NJC, the President of the NJO Tünde Handó, became a judge of the CC in 2020, replacing István Stumpf, the last member of the CC who had been appointed before the election of Orban.Footnote 194
Such a structural change in the justice system achieved the intended outcomes. The successful application of Baka does not change the situation in the Hungarian national context. In the same way, as the judges dismissed following the enactment of new age limits were successful at the CC but not guaranteed their position at the courts, in Baka’s case again, the intention of the parliamentary majority was successful. Nevertheless, Hungary still experiences some dissent against political interference in the judiciary. The NJC clashed with the President of the NJO in 2018, which resulted in significant resistance by members of the NJC. NJC member Csaba Vasvári turned to the CJEU with a preliminary question on judicial independence in Hungary. Footnote 195Subsequently, the Kuria claimed the preliminary question from the CJEU was unlawful,Footnote 196 and the regional court president filed a motion for disciplinary proceedings against Vasvári. With this example and the punishing of the former President of the Supreme Court Baka, the judiciary’s growing activism to ensure that its members not be punished for fulfilling their duties and not be subordinated below political actors. Moreover, because of strong resistance from the judges, the public, and the international community against the influence of the justice minister on the new administrative courts,Footnote 197 the plan to establish an administrative judiciary in 2020 was abandoned.Footnote 198
E. The Insidious Attack
I. United States
In the U.S. context, we will discuss a particular kind of attack we call the insidious. Therefore, we will omit discussion of court-packingFootnote 199 proposals that would create a systemic attack in our categorization. Due to the specific quality of rhetoric from political actors, we will refer mainly to statements and publicly expressed opinions.
During the presidential term of Donald Trump, the attacks were no more subtle but have taken a far different and more insidious form.Footnote 200 Instead of directly approaching a sitting judge about a particular case, Trump has publicly identified judges as if they belong to him—“my judges”—or as if they belong to a predecessor president who nominated them – “Obama’s judge”.Footnote 201 Further, judges deciding particular cases of interest to Trump have been derided as, for example, a “Mexican judge.”Footnote 202 In this particular instance, the judge was of Mexican descent, and because Trump has called Mexicans “rapists” and because Trump so prominently insisted on building a wall to prevent border crossings by Latin Americans coming from Mexican territory to U.S. territory, Trump’s reasoning is that such a judge could never be fair to him and must therefore be disqualified.Footnote 203
Trump started this undermining tactic even while still a candidate. While it is not unusual for a presidential candidate to promise to appoint judges who share a world-view or philosophy with the president, the language chosen has been something like, “I promise to appoint judges who are pro-life [or who see the right to bear arms as essential to the American experience], or the like.”Footnote 204 Nevertheless, with Trump the language chosen even at this early stage was to describe “my judges” or “her judges,” expressing ownership. Assuring Evangelical Christians that gun rights will be protected, a curious concept on its face, he said to such an audience: “If it’s my judges, you know how they’re gonna decide.”Footnote 205 At a similar campaign-trail event, he said, “[m]y judges will be pro-life.”Footnote 206 Multiple such examples can easily be found.
The penchant for describing judges as a president’s property continued whenever Trump lost a case decision. When for example, a federal district court judge blocked Trump’s Muslim travel ban, Trump was quick to describe him as “Obama’s judge.”Footnote 207 The idea being communicated is straightforward: Judges simply do as the president who appointed them wants them to do; judges are not independent or impartial arbiters of law and facts; their decisions are easily predictable by knowing the president who appointed them. Two corollaries emerge. First, judges are mere political actors doing as their sponsor wishes them to do. Their decisions are essentially illegitimate. Second, if you like my policies, rejoice if I get the opportunity to appoint more judges because they will do as I tell them.
This phenomenon became commonplace in Trump’s reactions to judicial decisions that frustrated his policies. These judges were not fair and impartial, they were Obama’s judge or Clinton’s judge, and therefore their decisions were as if directed by Obama or Clinton.Footnote 208 It was so pronounced that Chief Justice Roberts took the extraordinary step of issuing a statement about judges and the presidents who appoint them: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” Roberts said. On the day before Thanksgiving, he concluded, “The independent judiciary is something we should all be thankful for.”Footnote 209
Itching to continue a fight with the independent judiciary, Trump responded in another tweet: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”Footnote 210 Now, “Obama judges” are not only lacking independence, they do not care about the safety of Americans.
The message is beginning to stick. More often and more prominently than before, it was usual to read in media that describes a judicial decision that Clinton appointed the judge, second Bush, Obama, Trump, or even first Bush. This idea has crept into the consciousness: Who appointed the judge matters and if a person disagrees with a judge, the explanation may simply be that the person disagreed with the president who appointed him or her. Even a recent Supreme Court Justice, Justice Thomas, has implied that this is the case in a recent opinion.Footnote 211
Arguably, the worst of these comments are those attributing a judge’s decision to the president who appointed the judge. Nevertheless, Trump’s disparagement of judges, implying a lack of independence or impartiality, has also taken other forms. Trump is a private party in an enormous number of lawsuits. One of his frequent tactics to win a business advantage is simply to refuse payment owed under a contract and force a less-resourced plaintiff into a court battle.Footnote 212 He is also a defendant in multiple fraud cases, one prominent one being a lawsuit by former students at the so-called “Trump University.”Footnote 213 Former students have sued for fraud. One judge presiding over the case is an American of Mexican descent. Trump asserted publicly that this judge could not be trusted to issue impartial decisions.Footnote 214 In still another example, at the time, Attorney General Jeff Sessions wondered on a conservative talk radio show, why it should be that “judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.”Footnote 215 The Pacific island, of course, was Hawaii is a U.S. state, and the judge was a duly appointed, highly respected United States district court judge with life tenure under article III of the U.S. Constitution.
Historically, U.S. federal judges have not hesitated to make decisions that were at odds with what the well-known views and philosophy of the presidents who appointed them.Footnote 216 Indeed, presidents endeavor to appoint federal judges who share their philosophy. However, many factors make this goal a limited one. The president nominates federal judges, but they must be confirmed by the Senate. Until recently, sixty out of 100 votes were required to confirm a president’s nominee in the U.S. Senate. Even when the president’s party has a Senate majority, it will often not amount to a sixty-forty- majority. As a result, again the nominee must be chosen who is not extreme enough to motivate the opposition party to filibuster and block a nomination with seats from forty-one – forty-nine. In addition, life appointments produce at least some judges who change their views over time, becoming less like the president who appointed them. As well, the overriding respect for law and precedent means that lower court judges follow precedents they would disagree with if they had power to change them. And Supreme Court Justices are reluctant to overrule prior Supreme Court precedents, and they do so far less frequently than their own judicial and legal philosophy—and that of the president who appointed them—would seem to indicate. Finally, the U.S. has had a relatively frequent change from one party to the other being in the presidency and control of the Senate. As such, a president’s influence is moderated.
There are enough examples to fill a book of federal judges who did not turn out as the president who appointed them might have predicted or wished. Here are but three prominent examples. John Paul Stevens, appointed by Republican President Ford became the senior leader of the liberal wing of the Court. He died recently, giving journalists and others the opportunity to remember the irony:
Societal debates over the rights of gay men and lesbians, the role of race, private property rights, environmental regulation and the separation of church and state also made their way onto the Supreme Court’s docket, and Justice Stevens, a low-key Republican from Chicago, was as surprised as anyone to find himself not only taking the liberal side but also becoming its ardent champion.Footnote 217
Earl Warren, former Republic Attorney General and then Governor of California, nominated to the Supreme Court by Republican President Dwight Eisenhower, led the longest sustained liberal period in Supreme Court history, enshrining civil rights, criminal defendants’ rights and voting rights for minorities.Footnote 218 All of this was so significantly to the consternation of conservatives that it was not uncommon in the U.S. South to see “Impeach Earl Warren” billboards along highways.Footnote 219
Third, William Brennan, also appointed by Eisenhower, led the liberal wing of the Warren court and continued in his role as the most liberal member of the Court until 1990,Footnote 220 long enough to engage in celebrated judicial opinion scuffles with a new Justice at the time, Antonin Scalia.
In the aftermath of the 2020 election, a striking example emerged of how federal judges’ appointments and conduct afterwards normally proceeds. The presiding judge in perhaps the most widely followed of the Trump campaigns’ many lawsuits claiming fraud or election mismanagement was Matthew Brann of the United States District Court for the Middle District of Pennsylvania. This civil action prominently featured Rudy Giuliani’s return to courtroom work after an absence of nearly thirty years.
Judge Brann was appointed by Barrack Obama, so, according to Donald Trump’s attacks on judicial independence, he was sure to rule against the Trump campaign. He did rule against the Trump campaign, in a scathing opinion that demolished the work of the Trump “elite strike force” team of lawyers. Nevertheless, there is much more to the back-story of Judge Brann and his appointment to the federal bench.
Before being appointed, Judge Brann was a long-time Republican Party official in Pennsylvania. He was a conservative Republican, as indicated by his membership in the Federalist Society. The Federalist Society has essentially been the font from which nearly all recommendations to Donald Trump for federal judgeships during his four-year term. Some have reliably said that the Trump administration essentially ceded to the Federalist Society control and management of the filling of federal judgeships with highly conservative judges.
How did it come to pass that Barrack Obama would nominate such a person to the federal bench?Footnote 221 The process was a typical example of normalcy during periods when the White House is in the hands of one party and the Senate is in the hands of the other. This phenomenon is exceedingly common. In normal times, the Senators from a state in which a federal judgeship is open and to be filled make recommendations to the president. These recommendations, while not binding, are honored as long as they are reasonable and not dramatically at odds with the particular president’s philosophy.
Judge Brann would arguably be a nomination dramatically at odds with Barrack Obama’s philosophy. Yet Obama nominated him. The nomination was recommended by the Republican Senator from Pennsylvania, Pat Toomey. The nomination was paired with another nomination to the same court, this one recommended by the Democratic Senator from Pennsylvania, Bob Casey Jr. The Senate confirmed the paired nominations by unanimous consent. As a result of this obvious compromise, the Republican-controlled Senate got a judge they preferred, Judge Brann, and Barrack Obama got a judge he preferred.
To anyone aware of this compromise and Judge Brann’s background, it would sound odd to label him “Obama’s judge.”Footnote 222 However, to an uncritical listener of Trump, it all makes perfect sense: Another Obama judge has issued a harsh, scathing rebuke of Donald Trump’s lawyers’ assertions of election fraud in Pennsylvania. Indeed, Trump himself tweeted following Judge Brann’s ruling: “It’s all a continuation of the never ending Witch Hunt, … Judge Brann, who would not even allow us to present our case or evidence, is a product of Senator Pat ‘No Tariffs’ Toomey of Pennsylvania, no friend of mine, & Obama - No wonder.”Footnote 223 Moreover, Rudy Giuliani, on behalf of the Trump campaign, decried the ruling of the “Obama-appointed judge.”Footnote 224
Finishing the pattern of federal judges who do not blindly support the president who nominated them, the United States Court of Appeals for the Third Circuit, affirming Judge Brann’s ruling, also in harsh tones directed toward the incompetence of the Trump campaign and its lawyers,Footnote 225 was written by a Trump-appointed judge for a three judge panel that also included two judges appointed by George W. Bush.Footnote 226
And in any event, judges have historically lost their connection with the president who appointed them fairly readily. In the U.S. it is anathema to think of a judge belonging to the president who nominated him or her. Trump’s tactic of undermining the public’s trust in the judiciary has been truly insidious. It works not only on his adherents but on his opponents.Footnote 227 Members of the public who oppose Trump and who are insensitive to the culture and necessity of independent judges now decry decisions favoring Trump as those rendered by Trump’s judge.Footnote 228 If it succeeds at changing public view, no change of political power will undo it. If public trust in judges is disqualified, generations will pass before the level of trust can be restored to pre-Trump levels.
F. Comparisons and Concluding Thoughts
All three forms of judicial independence attacks—vulgar, clumsy, systemic, and insidious—are dangerous and must be met with effective responses. Nevertheless, they differ in significant ways.
Vulgar attacks on judicial independence, when a state actor approaches a judge to apply pressure for a favorable decision, happened in Czechia and Slovakia.Footnote 229 Still, the outcomes in these two countries were very different. What in the Czech Republic appeared eventually as a clumsy attack, leading civil society to support the judiciary, in Slovakia had detrimental effects, leading the public to call for the political power to intervene in the judiciary by enacting constitutional reform. Such attacks might be considered isolated events in a country with stable formal institutions. The outcome for judicial independence depends on the resilience of the institutions. If the attacks happen in an environment where the informal practice clashes with formal institutions, the changes may produce detrimental long-term effects, as in Slovakia after “Threema.”
The systemic attacks in Poland and Hungary are more dangerous than the vulgar attacks. The attacks, too, may elicit some public protest, as took place. Nevertheless, faced with a majority or supermajority in parliament, the government has more capacity to stay its course. In Poland, the public response was undoubtedly softened to at least some degree by the public relations attacks engaged in by PiS as it introduced its judicial attack. The systemic attack, especially in Hungary, where a new constitution was adopted, will last until a change of the political winds. Moreover, to be sure, Fidesz has built protections into the election system that will protect it from anything less than a cyclone-force change of political wind. Nevertheless, when the day of political change comes, however long it might take, a better-motivated government will have the power to undo the structural changes.
The most dangerous attacks may be the insidious ones taking place in the U.S., and to some degree in Poland and Hungary based on the anti-judiciary public relations attacks on the hearts and minds of citizens. Public trust is the foundation of judicial power and its key underlying attributes. An attack that successfully undermines public trust in the judiciary will deliver the most far-reaching damage. By contrast, the U.S. experience with judicial independence runs deep into the culture and is protected by an elaborate system of checks and balances among the three branches.
To be clear, not all government-proposed restrictions on the judicial branch are attacks on judicial independence. Judicial independence is meant to empower judges to act justly. It prevents the government from placing its thumb on one side of the scales of justice, from interfering with a judge’s impartial decision of a case according to the law and the facts. However, judicial independence is not permission for judges to engage in wrongdoing. It is not a defense against the requirement of making transparent decisions. It is not an impenetrable force field that prevents judges from being held accountable for the quality and integrity of their judicial work. The parliamentary majority may limit judicial autonomy without an intention to meddle in outcomes of decision-making. Still, the motives and effectiveness of the political actors in our analysis were to capture control over judicial decisions in matters of importance to the government-in-power, and therefore we consider them as attacks.
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