Political branches will backlash with vicious countermeasures against the court.

Examples of political backlash abound in the literature. A challenged regime may respond in several non-mutually exclusive ways. 25 First, it may ignore the judicial decision. Second, it may overrule the judicial decision, either by enacting statutory legislation or reforming the constitution. Third, it may punish the individual judges and assert its control over the courts with a variety of tactics, including substituting judges, curbing courts' authority, initiating impeachments, reducing judges' remunerations, cutting the judicial budget (or not increasing it with inflation), and so on. Regimes can also deploy these strategies prospectively, before judges become a threat to them.

Subtler means and informal practices also exist. These generally involve threats, bribery, or pressure, including "telephone law" practices in which influential politicians without formal authority over judges ask them to decide cases in certain ways. 26Informal practices such as disregarding judges' tenures can make even formal guarantees of judicial independence irrelevant. 27In Argentina, these practices became the norm in the 1950s and 1960s as the political branches coordinated to punish judges and push the courts not to challenge the president. 28A regime may also use informal practices in conjunction with formal action against the judiciary. For example, several Argentinian Supreme Court judges also became the targets of impeachment trials after issuing unfavorable rulings. 29

Outside of Argentina, Latin American countries in general have a long history of political backlash against the judiciary. The Chilean strongman Carlos Ibanez purged a considerable part of the judiciary between 1927 and 1932. 30In Bolivia, the Evo Morales regime gradually dismantled the Constitutional Tribunal through political harassment, impeachments, resignations, and its refusal to fill judicial vacancies. 31In Peru, Alberto Fujimori's allies took a similar course of action in 1997 when they impeached the three judges that had opposed the President's plan for reelection. 32Years earlier, during the country's 1992 constitutional crisis, Fujimori had temporarily shuttered Peru's highest courts. 33In Ecuador, the 2008 constituent assembly dissolved both the Constitutional Tribunal and the Supreme Court while replacing them with new courts that were friendlier to President Rafael Correa. 34

Political backlash also occurs in other parts of the world. In Niger, President Mamadou Tandja disbanded the Constitutional Court and appointed new judges after the Court invalidated a plebiscite on extending his term. 35In Thailand, Prime Minister Thaksin Shinawatra influenced the Constitutional Court with "a combination of appointments, intimidation, and bribery, particularly focusing on the Senate, which played the linchpin role in appointments." 36

The most famous contemporary cases, however, have taken place in Eastern Europe. 37In Hungary, for example, Prime Minister Viktor Orban lowered the mandatory retirement age for judges, and packed the country's Constitutional Court with judges friendly to his regime. 38In Poland, the PiS regime targeted the Constitutional Tribunal "as its first and foremost enemy," 39and took actions such as refusing to recognize appointed judges, enacting statutes to exempt new laws passed by the PiS-controlled legislature from constitutional review, requiring the Tribunal to adopt its decision by qualified majorities, and refusing to publish judicial decisions. 40When President Boris Yeltsin was "frustrated" with the Constitutional Court in the nascent Russian Federation, he used the 1993 constitutional convention as an opportunity to promote the reduction of judicial powers. 41Although the Court's final design was not the one Yeltsin proposed, 42the 1993 Constitution still expanded the size of the Court, which allowed Yeltsin to appoint judges friendly to him. 43

To be sure, despite its proliferation in authoritarian and hybrid regimes around the world, political backlash against constitutional court judges can also exist in truly competitive democracies. 44

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There is an extensive literature discussing how constitutional courts are sanctioned in liberal democracies such as the United States. See generally Whittington, supra note 25; William N. Eskridge, Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479 (1987); John A. Ferejohn & Barry R. Weingast, A Positive Theory of Statutory Interpretation, 12 INT'L REV. L. & ECON. 263 (1992) (arguing that political actors' capacity to react to judicial decisions can influence judicial interpretation and that rulings that fail to take the political environment seriously are unlikely to stand for long); Jeffrey A. Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 AM. POL. SCI. REV. 28 (1997) (discussing evidence of judicial voting behavior to test whether judges tend to defer to Congress' positions or whether judges vote sincerely).

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For example, evidence suggests that the U.S. Supreme Court at times refrains from striking down federal laws when it faces a hostile Congress that could compromise its authority. 45 Although the most high-profile example of political backlash in a democratic context is President Franklin Roosevelt's court-packing plan for the U.S. Supreme Court in the 1930s, 46 lawmakers in democratic settings also have other means to reprimand an oppositional court, such as legislative override of judicial decisions or even constitutional amendments aimed at reversing judicial doctrines. 47