Worries all around.

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Poland's New Leaders Take Aim at Democracy

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Not every democracy needs a supreme court with the power to block legislation it deems unconstitutional. But Poland’s reforms of its Constitutional Tribunal, enacted by a right-wing majority and signed into law by a conservative president, are worrisome signs for the country's prospects of democratic government. The political timing -- and the nature of the changes -- provides a valuable guide to what judicial review is good for, and why so many countries have adopted it since World War II.

The changes in Poland took place in the wake of a landslide victory by the Law and Justice party in October, when it became the first party to win a parliamentary majority since Poland became a democracy in 1989. The new changes make it easier to investigate and remove judges from the tribunal, but that’s not the main problem. The real trouble lies with a provision that now requires a two-thirds majority of the court's judges to rule on the constitutionality of the country's laws.

In practice, the two-thirds requirement, coupled with a rule that at least 13 of the 15 judges must sit on every case, means that the sitting judges will find it much more difficult than they otherwise would to strike down new laws from the new ruling party. Indeed, it now may be impossible to strike down a law without votes from at least one judge appointed by the new governing majority.

This structural change subverts one of the most basic -- and controversial -- functions of a constitutional court. In theory, the purpose of such a court is always to apply the constitution impartially when ruling on the constitutionality of laws. In practice, everyone usually understands, in almost every country, that there are different possible interpretations of a constitution, and that these often correspond to different political views.

Given this reality, one of the main functions of a constitutional court is to keep new majority governments in check and protect the legacy and rights of the older government that’s now out of office. This checking function in turn is supposed to strengthen democracy itself.

To descriptive political scientists, the irreducible essence of democracy is for different political parties to trade places after elections -- then eventually trade back again. What differentiates a stable democracy from a shaky one is that the party out of office trusts that the majority party won’t suppress it to the point where it can’t run and win again.

As a result, the consolidation of democracy can be seen as a complex game, with each party signaling to the other that it won’t change the rules midstream and try to block the opposition’s efforts to retake power electorally.

The constitutional court’s role in this process is to act as a kind of drag on the ruling majority party, constraining its will to power. In this account, it doesn’t much matter if the court is especially objective or even trustworthy. What matters is that the court encourages the likelihood of future party-switching by pointing out the majority government’s overreach.

A famous, archetypal example was Marbury v. Madison, in which a Federalist-led U.S. Supreme Court established the principle of judicial review. Thomas Jefferson’s Republicans had swept into power in the 1800 election. John Marshall, appointed chief justice by Federalist John Adams before he left office, wanted to show the Republicans that they’d have to reckon with his court’s power to limit their majority decision-making.

Of course, this kind of watchdog role can make constitutional courts very unpopular with majority governments that want to make changes. Poland’s government probably anticipated feeling like Franklin Delano Roosevelt, who found his first major New Deal legislation blocked by the U.S. Supreme Court and responded by threatening to increase the number of justices, packing the court with his loyalists. The Law and Justice party is just acting preemptively, making it harder for the court to block its anticipated reforms.

What’s concerning about this preemption is that it signals that the party doesn’t want to be held back from making changes that might make it less likely the opposition could return to power. That’s why various European officials who are committed to keeping Poland democratic warned against the changes to the court’s structure and rules. The president of the European Parliament even called passage of the new law a coup d’etat.

If there’s a silver lining here, it might be that Law and Justice clearly isn’t worried that its changes would lead to the kinds of undemocratic reforms that would force meaningful European sanctions. So maybe the party doesn’t want to undermine democracy -- at least not too much.

But the problem with this optimistic thought is that Law and Justice might just be calculating that Europe has too many other serious problems to bother punishing it for weakening democracy at the margins. A Europe worried about a British exit from the European Union, and still haunted by the trauma of Greece’s threatened exit, might not be inclined to push away Poland, which has become a major European economy and (probably) isn’t on the brink of economic collapse.

The upshot is that weakening Poland’s constitutional court is a signal that democracy, though relatively well established in Poland, isn’t a sure thing. As Turkey shows, democratic progress isn’t one-directional.

Poland has been a model of democratization. Europe needs to pay close attention to make sure it doesn’t become a model of gradual democratic reversal.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net