Stronger than they seem: 'parchment barriers' and the state of judicial independence in Hungary and Poland

Judicial independence has been a particularly salient issue in the context of the rule of law in democracies and hybrid regimes in recent years. Actions to encroach on this independence are taken very seriously, evidenced by the Article 7 procedures against Hungary and Poland. A political consensus seems to exist that certain legal changes to their constitutional courts should be condemned as threats to judicial independence. In empirical works on the subject, however, a very different consensus exists, finding no strong relationship between ‘parchment barriers’, or de jure independence, and de-facto judicial independence. The gap between the political and scholarly consensuses is an important one, because resolving it should dictate policy responses to the very real problem of captured courts. This begs an interesting question– how have legal changes to the regulation and makeup of judiciaries affected actual judicial outcomes? This paper first inspects and reconsiders the key characteristics of de jure judicial independence, showcasing the need for more conceptual clarity between the relevant legal or constitutional provisions and the actual changes to the structures which judges, governments, and citizens operate within. It then analyzes constitutional court behavior in two country cases: Hungary and Poland. A two-part analysis is performed for each country case. First, the effects of all legal changes which occurred on overall court outcomes are estimated. Second, the specific mechanism of how changes to the judicial appointment process can influence individual judge behavior is investigated. The results of these analyses provide tentative evidence that the legal changes to the constitutional courts of both countries are related to a decrease in the likelihood of a case being decided against the preferences of the ruling government. In both cases, this appears to be at least partly driven by the behavior of judges appointed through more politicized appointment processes, which rule in favor of the government more often. Ultimately, the paper provides support for the notion that formal rules can and do affect behavior. It also highlights the inherent relationship between calls to increase the democratic representation and legitimacy within minority institutions, and the greater possibilities of their majoritarian capture