When Do Courts Resist? Institutional Conditions for Measuring Judicial Resilience
Why measuring judicial resilience requires looking not only at attacks on courts, but at how courts respond.
by Patricia Sotomayor Valarezo
The first post on this blog showed that measuring democracy involves a chain of conceptual and methodological decisions with substantive consequences, namely: how democracy is defined, what data are used, and how those data are aggregated (Freidenberg and Gilas, 2026). In addition, the dimension of institutional resistance to democratic backsliding could also be incorporated when accounting for the state of political regimes. Within this dimension, the judiciary is a fundamental actor when it comes to democratic resistance, although it is often measured less frequently. In response to this gap, this post argues that the available instruments are not designed to answer the most important question about Constitutional Courts in contexts of autocratization: a question that has less to do with how much they are attacked, and much more to do with when and under what conditions these bodies resist.
The Backsliding That Indices Detect Too Late
The literature on democratic backsliding has advanced considerably over the past decade. Bermeo (2016) identified contemporary mechanisms of gradual erosion; Levitsky and Ziblatt (2018) showed how leaders with democratic mandates dismantle institutions from within; and Lührmann and Lindberg (2019) empirically documented that the third wave of autocratization operates under a legal façade, incrementally and in ways that are difficult to detect in its early stages. Ginsburg and Huq (2018), for their part, noted that the two forms democratic decay can take often rely on weakening the checks exercised by courts and parliaments in order to attack the regime, hence the need for institutional designs capable of preventing erosion. In this process, Constitutional Courts are strategic actors, since they can be captured and become instruments of backsliding, or they can resist and contribute to slowing it down.
What this literature has not resolved is how to measure this second possibility. V-Dem offers valuable indicators for capturing attacks on the judiciary, such as high court independence (v2juhcind), judicial purges (v2jupurge), court packing (v2jupack), and government compliance with judicial decisions (v2jucomp) (Coppedge et al., 2023). The problem is that these indicators are designed to measure what executives do against courts, rather than what courts do in response to executives. This asymmetry is not technical but theoretical, since it reproduces, at the level of judicial politics, a bias of unidirectionality by capturing only what rulers do and not the possible responses of judicial bodies. This can be understood as an extension of the broader problem that Freidenberg and Gilas (2026) identify as a linearity bias, referring to the error of treating democratization as an orderly sequence of stages.
A necessary issue when determining what types of responses courts may have involves distinguishing between structural independence and behavioral independence. A court may have formal guarantees of stability and still yield to executive pressure; or it may have a weak institutional design and nonetheless act autonomously at critical moments. This distinction is theoretically important. Ríos-Figueroa and Staton (2014) argued that de facto and de jure judicial independence systematically diverge, and that available measures mix both dimensions without recognizing it. Linzer and Staton (2015) constructed a latent index precisely to try to capture behavioral independence, although its design remains more sensitive to structural conditions than to specific episodes of resistance. Capturing other variables that affect the work of judges and, therefore, the responses courts provide—such as legal socialization or the type of judges—is therefore indispensable.
Four Conditions for a Theoretical-Methodological Framework of Judicial Resilience
An adequate instrument for measuring when courts contribute to halting democratic backsliding should meet at least four conditions.
First condition: capture episodes, not only levels. Current V-Dem indicators produce annual level scores that describe the state of judicial independence, for example, at a given moment. What is needed to analyze resilience are episode indicators; that is, sequences with identifiable beginnings, developments, and outcomes, in which a court faces documented pressure and makes decisions with observable effects on the trajectory of backsliding. The recent work by Nord and Lindberg (2025) on episodes of democratic resistance points in this direction at the systemic level, but it does not move down to the level of specific institutional actors, although it does highlight that a strong judiciary and greater democratic experience reduce the likelihood of democratic breakdown.
Second condition: measure the cost of resisting. A court that issues a ruling against the executive without institutional consequences is not comparable, in terms of resilience, to a court that resists while facing purges, budget cuts, or constitutional reforms directed against it. For this reason, the measurement instrument should incorporate a dimension of assumed institutional risk. Without it, structurally different situations are treated as equivalent, and real resilience is underestimated in contexts where resistance entails high costs—precisely the contexts that are most relevant for the study of backsliding. In the region, for example, it would be misguided to compare the resistance that the Constitutional Court of Colombia may display, protected by a recognized institutional framework, with what the Constitutional Chamber in El Salvador was able to do in 2021 in the face of its purge by a hegemonic executive.
Third condition: distinguish resilience from neutrality. A court that does not systematically rule in favor of the executive, but also does not rule against it, may appear independent, although it is not necessarily so. It may simply be avoiding politically costly cases, or deciding on peripheral areas while yielding on central ones. Behavioral indicators must be directional; that is, they must record whether court decisions, in substantive areas linked to the process of backsliding, go against the interests of the executive in moments of documented pressure.
Fourth condition: integrate the external support environment. Comparative research on judicial resistance in Poland and Hungary (Gyöngyi, 2024) has shown that courts’ ability to resist does not depend only on their own institutional resources, but also on the external coalitions that support them, including judges’ associations, civil society, the legislative opposition, and international actors. A framework of judicial resilience that ignores these coalitions produces incomplete diagnoses. V-Dem includes indicators on civil society mobilization and international support for democracy, but we lack measurements that analytically link them to judicial behavior.
Why Does Measuring Poorly Have Political Consequences?
The asymmetry between the instruments available to measure backsliding and those available to measure resilience is neither a minor nor a neutral problem. Its effect is to produce diagnoses that are systematically biased toward deterioration and to underestimate episodes in which institutions manage to curb erosion. In the case of the judiciary, this bias has direct consequences for how international organizations evaluate the rule of law in a country, for citizens’ assessments of institutions, and for the strategies of actors attempting to defend democracy from within the system.
The 2025 V-Dem report documents that 45 countries are currently experiencing active episodes of autocratization. In most of these processes, judicial deterioration is a central component. The gap that still exists—and on which the discipline must work—is the need for empirical evidence regarding how many courts, among those 45 countries, have resisted at some point, with what resources they have done so, and with what effects on the trajectory of backsliding. That is the question a framework of judicial resilience should be able to answer. Building it requires, first, recognizing that we must move forward in developing instruments for this purpose.
References
Bermeo, Nancy. 2016. “On Democratic Backsliding.” Journal of Democracy, 27(1), 5–19.
Coppedge, Michael, et al. 2026. “V-Dem Codebook v16.” Varieties of Democracy (V-Dem) Project.
Freidenberg, Flavia and Karolina Gilas. 2026. “How Can We Tell Whether a Country Is Democratic?” Changes Within Democracy Blog, June 15. Available at: https://changeswithindemocracy.substack.com/p/how-can-we-tell-whether-a-country.
Ginsburg, Tom, and Aziz Z. Huq. 2020. How to Save a Constitutional Democracy. University of Chicago Press.
Gyöngyi, Petra. 2024. “The Role of Judicial Associations in Resisting Rule of Law Backsliding: Hidden Pathways of Protecting Judicial Independence Amidst Rule of Law Decay.” International Journal of Law in Context, 20(2): 166–183.
Levitsky, Steven and Daniel Ziblatt. 2018. How Democracies Die. New York: Crown Publishers.
Linzer, Drew, and Jeffrey K. Staton. 2015. “A Global Measure of Judicial Independence, 1948–2012.” Journal of Law and Courts, 3(2): 223–256.
Lührmann, Anna, and Staffan I. Lindberg. 2019. “A Third Wave of Autocratization Is Here: What Is New About It?” Democratization, 26(7): 1095–1113.
Nord, Marina, and Staffan I. Lindberg. 2025. “U-turns—The Hope for Democratic Resilience.” Policy Brief, 42: 17–39.
Ríos-Figueroa, Julio, and Jeffrey K. Staton. 2014. “An Evaluation of Cross-National Measures of Judicial Independence.” The Journal of Law, Economics, & Organization, 30(1): 104–137.
About the Author
Patricia Sotomayor Valarezo is a political scientist and lawyer. She holds a PhD in Political Science from the Pontifical Catholic University of Chile. She also holds two postgraduate degrees in Law and she is a member of the Network of Women Political Scientists – #NoSinMujeres. Her research focuses on judicial politics in Latin America, socio-legal studies, and institutional analysis, with an emphasis on high courts and the relationship between law and politics. Her email address is psotomayorv@usfq.edu.ec, and her X account is @PatySValarezo.
This post is part of the project “Changes Within Democracy: Backsliding, Resistance, and Resilience,” developed at the National Autonomous University of Mexico [UNAM/DGAPA PAPIIT IN309526].
The information contained in this post does not necessarily represent the opinion of the National Autonomous University of Mexico, Mexico.
How to cite this post
Sotomayor Valarezo, Patricia. When Do Courts Resist? Institutional Conditions for Measuring Judicial Resilience. Changes Within Democracy Blog, July 1. Available at: https://changeswithindemocracy.substack.com/p/when-do-courts-resist-institutional