Who will Save the Redheads? Towards an Anti-Bully Theory of Judicial Review and Protection of Democracy

Abstract

This article analyses three main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and non-believers that courts can save democracy; and the tension between strategic and legal considerations that courts consider when facing pressure from political branches. At its core, the article argues that courts have an important role in protecting democracy against constitutional reforms eroding the constitutional order, and that courts should stand firm against pressure and do their best to protect democracy.

Keywords: democratic erosion, democracy, populism, unconstitutional constitutional amendments, judicial behavior