The United States has been consumed with the one vacancy on the U.S. Supreme Court. Just imagine the media storm in Poland, where 18 of 73 Supreme Court seats may become open. Among them is the seat of Chief Justice Malgorzata Gersdorf.
On July 4, Gersdorf went to work doubting she would be let into the building. Three months earlier, Poland’s Parliament, led by the majority Law and Justice party (PiS), passed a bill to reform the Supreme Court — which would effectively relieve 27 judges of their duties, regardless of whether a judge’s six-year term had expired.
This was the latest in judicial reforms rolled out since PiS assumed power in 2015. Implementation of this final reform, if successful, will give the ruling party full control of the judicial branch of government more than two years before Poland’s next parliamentary elections.
The retirement is involuntary — and contested
The new law stipulated that all judges must retire at age 65, although justices older than 65 were allowed to petition the minister of justice to delay retirement after providing a statement and a doctor’s note. Reportedly, 16 judges did so, but Gersdorf was not among them. Instead, she designated Justice Józef Iwulski, the court’s second-most senior judge, to replace her, should security forces prevent her from entering the building.
Polish President Andrzej Duda used the opportunity to make an announcement that effective July 4, Iwulski was the new chief justice of the Supreme Court.
On July 3, one day before the new bill was to go into effect, Duda met with Gersdorf. The Polish president could have given her notice not to show up for work the next day — but that would have documented the openly unconstitutional action of terminating the judge before the end of her term.
This follows the PiS modus operandi since 2015: The party has been walking the tightrope between sliding into open authoritarianism and maintaining constitutional order, which is important because PiS’s electorate is just as supportive of democracy and rule of law as the supporters of any other party.
It’s not just Poland
In societies characterized by a strong attachment to democratic principles, playing the wolf in sheep’s clothing allows closet autocrats to take over democratic institutions unnoticed. Closet autocrats achieve this by starting out with implementing reforms — though some may interpret these reforms as democratic backsliding, the moves are also consistent with the regime’s extreme ideological agenda.
By the time voters realize that policies passed by an incumbent they elected into office are enabling the implementation of full-on authoritarian rule, it is often too late. Such voters will be likely to regret earlier decisions.
Why retire judges instead of firing them?
PiS’s pretext to reform the judiciary was that this branch of government remains infiltrated by members and collaborators of the former communist regime. Early retirement would in one stroke remove judges whose tenure may date to pre-democratic Poland — though not always, if they became judges after 1989.
The retiring-instead-of firing strategy was used in 2016 to purge Poland’s Constitutional Tribunal. Similar provisions were included in the bill reforming ordinary courts. There, too, judges older than the retirement cutoff could petition the minister of justice, who would effectively vet them.
The template for this strategy was developed not in Poland, but in Hungary, when Viktor Orbán took this approach in 2010 to remove judges on ordinary courts if they were older than 62. This move was one of Orbán’s last steps toward bringing Hungary’s exceptionally strong judiciary branch under his control.
Why are the strongest courts falling prey to the executive branch?
And why is this happening in Eastern Europe’s new democracies? Historically weak courts, precisely because they are unable to curb executive overreach, pose less of a threat to executives wishing to expand their powers, so presidents don’t encroach on their powers.
But strong courts do pose such a threat, which is why closet autocrats will want to weaken these institutions. In this view, limiting judicial oversight is one of the first telltale signs that the executive is not satisfied with its constitutionally defined rights.
Strong courts are something that Poland and Hungary had in common after their transition to democracy. This strength manifested itself in repeatedly striking down legislation aimed at settling accounts with former communist elites, known as lustration. In light of this theory, the PiS attack in Poland and the Fidesz party’s attack on Hungary’s courts are of little surprise.
What is the European Union response?
As E.U. members, Poland and Hungary are bound to follow the E.U. charter, a legally binding document that sets out basic rights and rule-of-law principles for member states. The charter was aimed at ensuring that E.U. members respect the independence of the judiciary and executive noninterference with the tenure of judges. It was designed as a “standard for examining both E.U. legislation and national measures.”
Yet Poland and Hungary have largely been shielded from the harshest E.U. sanctions — such as being denied voting rights in the European Parliament. Hungary’s impunity reflects Fidesz’s membership in the European People’s Party (PPE), the largest party in the European Parliament. Were Hungary deprived of voting rights, the PPE would lose its plurality of seats in the assembly.
The restraint with regard to Poland is harder to explain — but setting a precedent that would make it difficult to continue shielding Orbán has to be one consideration. The E.U. has initiated an Article 7 procedure, however, which bumps the Polish case of changing the retirement age, instead of waiting for a justice’s tenure to run its course, onto the docket of the European Court of Justice.
How effective is retiring instead of firing?
On Thursday, Gersdorf went to work, but only to fill out paperwork to take a leave of absence. Instead of resigning, she agreed to let Iwulski step in. According to Gersdorf (and a majority of justices siding with her in a joint statement), Iwulski will be no more than an acting chief justice. According to the president, though, Iwulski is now Supreme Court chief justice.
By Monday, demonstrators had left the streets, and the standoff between the president and judiciary appeared to come to a close — as the nation anticipates the decision of the European Court of Justice.
Monika Nalepa is an associate professor of political science at the University of Chicago. She is the author of “Skeletons in the Closet: Transitional Justice in Post-Communist Europe” (Cambridge University Press, 2010).