When one political party gains disproportionate power over the judiciary, courts often act not to defend democracy but to endanger it. Harvard Horizons Scholar and PhD candidate Andrew O'Donohue's research shows how.
As a PhD candidate in government at Harvard's Kenneth C. Griffin Graduate School of Arts and Sciences, 2025 Harvard Horizons Scholar Andrew O'Donohue explores the complexities of democratic resilience in his project, "Law versus Democracy: Why Courts Defend or Undermine Democracy in Turkey, Israel, and Beyond." His research delves into the varying roles that courts play in either protecting or eroding democratic systems, drawing insights from compelling case studies in Turkey and Israel.
One night in Istanbul In 2016, while I was working for the US State Department, I watched, first in confusion, then in panic, as tanks blockaded a nearby bridge. A faction of Turkey's military was staging a coup attempt.
When the elected government prevailed over the coup plotters, I saw citizens celebrating the triumph of democracy. At the same time, I saw thousands of people arrested as the president used emergency powers to purge the judiciary and imprison opponents.
I realized I couldn't understand the powerful forces threatening democracy, nor did I know what I could do to protect democracy. I came to Harvard because I had this problem I needed to solve.
The global challenge facing democracy has motivated my research as a political scientist and inspired me to ask the following question. Why do courts defend or undermine democracy, in particular by upholding legal constraints on powerful political leaders?
Now, democracy literally means "the rule of the people." We choose our leaders and hold them accountable through elections. But for the democratic process to be free and fair, we also need the rule of law.
Our conventional wisdom is that the courts should act as defenders of democracy. Alexander Hamilton, a key architect of the US Constitution, wrote that the judiciary is an excellent barrier to the encroachments and oppressions of elected leaders. But sometimes, courts act instead as agents of democratic erosion, as political weapons that advance the interests of one partisan camp rather than democracy.
To understand why courts defend or undermine democracy, my research compares two critical cases of democratic backsliding, Turkey under President Tayyip Erdogan and Israel under Prime Minister Benjamin Netanyahu. In Turkey, Erdogan not only captured the courts, he also mobilized societal support to do so. In Israel, Netanyahu tried to curb the courts, but faced historic societal opposition and was forced to suspend several key proposals.
To understand these divergent outcomes for democracy, I went inside Turkey and Israel's highest courts. In both countries, I conducted dozens of interviews with high-ranking judges, lawyers, and experts. I also collected original data on thousands of decisions in which the courts evaluated whether government policies were unconstitutional.
These sources of data, in combination, offer us unique insights. High-ranking judges have a front row seat to democratic backsliding. But they're very difficult to access and to interview. Let me tell you the story of what I discovered. To understand why courts constrain powerful leaders, you need to look at three key factors.
The first factor is what I call judicial power-sharing–in other words, whether the process of appointing judges requires cross-partisan compromise. The second factor is the power of the political establishment, the degree to which elites and political parties and state institutions can block an attack on the courts. The final factor is societal mobilization, whether citizens mobilize for or against the courts.
To develop this theory, I traveled first to Turkey. The key lesson I learned there is this–when courts become captured by one partisan camp, they often become agents of democratic erosion. In Turkey, the process of appointing judges required very low levels of power-sharing. Turkey's president handpicked judges for the Constitutional Court without even consulting elected officials, let alone ensuring consensus. The result–Turkey's president almost always won in court.
In my analysis of court decisions like these ones, I find that when Turkey's president asked the Constitutional Court to strike down government policies, the president won almost 80% of the time. When a religious conservative leader named Tayyip Erdogan rose to power in 2003, he initially faced powerful constraints from Turkey's political establishment. Those constraints forced Erdogan to work gradually and covertly.
To undermine the judiciary, Erdogan used a strategy I call court baiting. He passed very popular policies, like allowing Muslim women to wear headscarves in universities, a policy that 75% of the public supported, but that Turkey's secular courts struck down. In response, Erdogan argued, persuasively, that the judiciary was obstructing the will of the people, "milli irade" in Turkish. Erdogan mobilized broad societal support, even outside his own voter base, for increasing government's control over the courts in a constitutional referendum in 2010. That is how Erdogan, in the name of democracy, crushed the courts.
To understand why courts defend democracy, I needed to travel elsewhere, to Israel. Actually, I was in Tel Aviv last week. But I flew back just for you guys.
In Israel, I spoke to people with wide-ranging perspectives, from a liberal Supreme Court president to a conservative justice minister, from people who are ultra-orthodox to Palestinian. These people disagree about what democracy means and whether Israel is democratic.
In Israel, Prime Minister Netanyahu has been in power for more than 16 years. That's half my lifetime. Yet, surprisingly, Israel's Supreme Court continues to act as a constraint on executive power. Why? The first factor is judicial power-sharing. As one Israeli Supreme Court clerk told me, on the judicial selection committee, politicians do not have unlimited power to appoint their preferred judge. They have to compromise. As a result, Israel followed what I call the "Noah's Ark strategy." The opposing sides couldn't agree on one judge. So they appointed judges two by two, one from each side, or even four by four. This judicial power-sharing allowed elected governments to influence the Supreme Court, but not to capture it entirely.
But then, in 2022, Netanyahu formed a more extreme coalition in which establishment actors lost power to block an attack on the courts. As a result, Netanyahu's government suddenly and overtly challenged the courts. That sudden attack backfired. Even though elected officials couldn't protect the judiciary, this sudden attack created a focal point for societal mobilization to defend the courts. Numerous sectors of Israeli society, from tech leaders and trade unions to military reservists, mobilized to sustain large-scale, long-term protests. This societal mobilization pressured Israel's government to withdraw several proposals, although the fight over Israel's courts continues to this day.
Of course, challenges to the courts are not unique to Israel or to Turkey. Today, in democracies around the world, political leaders are challenging legal constraints on their power, from Poland in 2016 to Brazil in 2020, Mexico in 2024, and of course, the United States today.
What can the United States learn from other democracies that have faced this global challenge? Let's start with the first factor, judicial power-sharing. I find that three institutions tend to promote judicial power-sharing-- a supermajority requirement to appoint new judges, compromise between elected and non-elected actors, and age or term limits. Israel had all three of these power-sharing institutions, whereas Turkey had just one.
What about the United States? When we score democracies around the world by their level of judicial power-sharing, the United States ranks last. Ever since the Senate eliminated the supermajority requirement for Supreme Court justices in 2017, the United States has none of the three institutions that protect the courts from partisan politics.
The second factor is the power of the political establishment. In the United States today, the president faces very few constraints from establishment political elites. That lack of constraints is enabling an unusually aggressive attack on the courts.
So what about societal mobilization? If a political leader sought to curb the courts, would citizens in the United States defend them? Other countries have shown us divergent paths for our democracy. Which path we take is up to us.