How populists undermine trust in the judiciary

Judiciaries in a number of countries are increasingly under attack from populist parties. Political scientist Philipp Köker explains the strategy behind the trend—and how to counter it.

Why are populist parties so critical of the judiciary?

In liberal democracies, courts, and constitutional courts in particular, play a central role. They protect the rights of individuals and minorities and, by extension, social pluralism. They also monitor adherence to the rules of politics and ensure that laws and other political decisions don't contravene the constitution. For populists, especially those with authoritarian tendencies, this is a problem, because it means that ultimately courts can even block the will of the majority.

In their opinion, this undermines the alleged "true will of the people," which they claim to represent and try to enforce at any cost. In addition, populists are often themselves rule-breakers who intentionally flout existing rules to achieve their goals. This is another reason for them to attack the courts.

What goal do populists pursue with these attacks?

Their goal is that people lose trust in the judiciary and no longer recognize its legitimacy. If a populist party then comes to power, it will have an easier time subjugating the judiciary without having to fear major resistance. But even when they are not part of the government, populists have an interest in weakening the judiciary.

In Germany, for example, the Federal Constitutional Court can ban political parties or terminate their state funding. However, if doubts about the legitimacy of court decisions have been sown beforehand, those decisions become more difficult to implement and it becomes easier for populists to oppose the courts. Ultimately this makes it more difficult for the courts to pass such judgments.

What strategies do populists use to discredit the judiciary?

Our most recent study shows that narratives about the failure of the system or about the people being oppressed by an elite play a big role here—regardless of whether the targets are courts as institutions, judges as individuals or a specific ruling. When populist actors target individual judges, they portray them as instruments of the political class or as agents of a detached elite that supposedly works against the people.

In Germany, this is relatively easy because the judges of the Federal Constitutional Court are elected by the Bundestag and Bundesrat, and some of them also have close ties to political parties. However, they keep silent about the fact that judges are primarily selected on the basis of their professional qualification for the job and act completely independently in practice. As regards individual court decisions, populists often try to instrumentalize them for their own ends.

If a court passes a judgment that goes against the populists, they interpret it as a sign that the elite is working against its own people. If it rules in the populists' favor, however, they praise the "morally upright judges" who have recognized that the "true representatives" of the people must be backed against the elite. So, in the end, regardless of which way they go, court decisions always confirm the world view of the populists.

And what exactly is that world view?

As a "thin ideology," populism cultivates a world view the core elements of which are an "us versus them" mentality and a "people versus the elite" narrative.

Right-wing authoritarian parties interpret every court decision in a way that tallies with this world view, and they get away with it because their supporters are far more emotionally attached to them than is generally the case with supporters of other parties—to the point where many supporters of authoritarian populist parties don't even notice the blatant contradictions in these parties' arguments.

As an example, in Germany, we hear populist voices accusing the Federal Constitutional Court of being "a slave to the government," but also of being too powerful and of pursuing its own policies. Yet these contradictions go unnoticed because the focus is less on concrete political content than on a certain world view.

Your research shows that populist parties can undermine the judiciary even as opposition parties. What channels can they use to do this?

The rise of populism as a general trend is inextricably linked to social media. These platforms enable authoritarian populists to get their message across to the people unfiltered—along with conspiracy narratives and "alternative facts" about the judiciary.

In the past, the editors of traditional media outlets evaluated information and then decided what to cover on the basis of this analysis. Thanks to social media, populist actors can now bypass these traditional media. Although there were populist movements in the past, their global rise in recent years and their partially successful fight against the judiciary would never have been possible without social media.

Every now and then, populist parties themselves take legal action in high courts. How does this fit in with the strategy of delegitimizing the judiciary?

Using the tools of the opposition to undermine the political process is part of their strategy. Take the first session of the Thuringian state parliament in autumn 2024: the AfD took advantage of the established norm that the oldest member of the parliament acts as Alterspräsident, opening the session and remaining chairman until a new president of the state parliament is elected, to create chaos. The Alterspäsident, who in this case was from the AfD, refused for hours to permit a vote on a motion that would have allowed the CDU to propose one of its own as president of the state parliament.

The CDU decided to take the matter to the Thuringian Constitutional Court. However, one of its judges is a CDU member, and his son is a member of the state parliament for the CDU—a combination that would have given an AfD challenge on grounds of bias a good chance of success. However, the AfD decided against this course of action and instead waited for the court's judgment—which ruled in favor of the CDU—and then railed against the judiciary and filed a complaint against the judge for obstruction of justice. From a legal perspective, this was a completely nonsensical approach, but it fits in perfectly with the strategy of deliberately bringing the judiciary into disrepute.

How successful are authoritarian populists with their strategy?

Highly successful, as we see if we look at other countries. In the US, the right-wing populist wing of the Republican party has managed to massively undermine trust in the judiciary with a campaign that has gone on for years. The US is a special case, because the Supreme Court in particular has always been more politicized than, for example, Germany's Federal Constitutional Court. Nevertheless, the constant attacks have weakened the rule of law in the US to such a point that today few courts in the country dare take on the Trump administration.

Another example is Poland, where the government of the Law and Justice party (PiS) overrode important control mechanisms and essentially hijacked the country's Constitutional Court between 2015 and 2023 with its controversial reforms of the judiciary. There too, the attacks were preceded by a campaign that began while the party was still in the opposition. At the time, it claimed that the judiciary was still dominated by communist elites, and that it represented the specific interests of just a few minorities. These constant attacks severely undermined public trust in the courts, so when the PiS came to power it was able to implement its judicial reforms very quickly. It was only once the scope of the reforms became clear that social and political resistance began to emerge.

What can the public, other parties and the judiciary do to counter these strategies?

First of all, we must all learn to recognize populist attacks against the judiciary as part of a targeted strategy. In Germany, this has not been the case to a sufficient degree in recent years. Furthermore, those in government should repeatedly emphasize the advantages of an independent judiciary and consistently implement its rulings—even if they don't agree with them. The courts themselves could also do more to restore trust, for example, by counteracting disinformation through effective public relations work conveyed in understandable language.

The media also play a key role. The recent events surrounding Frauke Brosius-Gersdorf's candidacy as a Federal Constitutional Court judge highlight all that can go wrong here. For example, many media outlets initially reported on the allegations against Brosius-Gersdorf—which have since been completely refuted—without questioning them or clarifying who was making them or whether there was any evidence to support them. There was little research into Brosius-Gersdorf's true views on the subject of abortion, for instance, or to what extent her position was extreme—and initially few reports on the fact that she was actually the victim of a right-wing populist campaign which even some politicians in the CDU/CSU parliamentary group apparently believed.

The fact that Brosius-Gersdorf was ultimately forced to give up her candidacy underlines how dangerous delegitimization campaigns can be for our democracy. In future, the media should counter false information sooner and more directly to ensure that populist forces don't succeed with their strategy of delegitimizing the judiciary.

Provided by Carl von Ossietzky Universität Oldenburg