There is a general trend among recent populist movements to implement measures that interfere with the independence and proper functioning of the judiciary. These movements seek to frame the courts in opposition to the popular will, yet the truth is more complicated than the populists would have us believe.
In this policy brief, Nicholas Friedman examines the subtle ways in which populism may impact the courts in the longer term (beyond more overt attempts to remove judges and pack courts), and argues that courts have to be critically concerned with their institutional legitimacy, owing to their status as the weakest among the three branches of government, with little ability to resist incursions by the other two. Both factors incentivize courts to shore up their institutional legitimacy by playing to the popular will.
The author shows that decisions of the Supreme Court of the United States track the general political mood over the long term, and that the Court’s reward for doing so is enhanced legitimacy among the public. He concludes that the populist agenda may impact the courts even without a populist government takeover, and that courts are likely to reinforce rather than resist larger political trends towards populism.