When courts become the last line of defence for democracy

From keeping threats to democracy out to fixing the system from within 

The starting point for this discussion is a much older idea called militant democracy. This term was coined in the 1930s by legal scholar Karl Loewenstein, who fled Nazi Germany. His answer to the rise of fascism was simple: democracies should be allowed to ban movements that openly want to destroy democracy itself, for example by outlawing certain parties. 

But limiting threats to democracy upfront is not always as simple. "Populist  leaders rarely say that they oppose democracy," Stambulski explains. "On the contrary, they present themselves as its authentic defenders, as representatives of the people against elites, judges, or supranational institutions." In other words, they claim to speak for ordinary citizens against out-of-touch elites. Their more authoritarian side, Stambulski notes, often only becomes visible once they are already in government and start changing the rules from the inside, using entirely legal means. "This makes them much harder to stop through the old method of simply excluding them from elections, because it is not always clear in advance who or what democracy needs protection from." 

This is where militant constitutionalism comes in. Instead of keeping certain parties out of politics altogether, it relies on courts to step in once those parties are already in power, by declaring their laws and reforms unconstitutional when they threaten the rule of law, meaning the principle that everyone, including the government, must follow the law and that courts can keep them accountable. 

A defence that can work against itself 

However, there is a catch. When courts block governments that clearly won an election, this can easily be turned into a story about elites versus the people. After the US Supreme Court struck down his tariff policy, President Trump called the judges involved "unpatriotic and disloyal to the Constitution." Similar conflicts over how judges are appointed in Poland and Italy show the same pattern, legal checks on power get reframed as obstruction by unelected officials. 

In Poland, the government introduced disciplinary measures that could be used against judges who applied European rule-of-law standards in their rulings, making judges think twice before doing so. In Italy, recent government proposals would change how judges are appointed and who oversees their career and discipline. Critics argue these changes are designed to give politicians more influence over who becomes a judge and how judges are evaluated, which could make courts less willing to challenge the government. 

"The paradox is that by the time militant constitutionalism becomes necessary, it may already be politically difficult to use effectively," says Stambulski. Governments with strong voter support can use judicial pushback to their own advantage, presenting themselves as the true voice of the people against a distant "juristocracy," meaning rule by judges rather than by elected representatives. 

Why courts cannot do it alone 

The symposium's main argument is that legal protections are not enough by themselves. "Courts left on their own are not enough to defend rights and the rule of law," Stambulski says. Without support from society, leaders can simply ignore court rulings without paying much of a political price. He points to citizens, NGOs, universities and local governments in Poland, Georgia and Hong Kong, who helped keep constitutional values alive through protest and public debate, not just through legal rulings. 

For the Netherlands, Stambulski's advice is to think ahead. Judicial independence, he warns, "cannot be taken for granted simply because institutions currently function well. Countries with strong institutions should consider how resilient those institutions really are before a crisis hits, rather than waiting until problems have already taken hold.'' 

An open question for democracies today 

The symposium grew out of a workshop the two researchers organised in Bologna earlier this year, titled Militant Constitutionalism: Judging Rule of Law Enemies. "We were interested in the increasingly active role courts are playing in responding to democratic backsliding," Stambulski explains, using a term for the gradual weakening of democratic institutions from within. That raises an uncomfortable question, he says: "does judicial activism strengthen democracy, or can it sometimes deepen political conflict and fuel backlash against courts themselves?" It is exactly this question, with clear relevance for how democracies across Europe, including the Netherlands, defend themselves today, that the ten-part symposium sets out to explore.