Fair Law or Lawfare?
Why courts uphold—or undermine—democracy when politics becomes polarized
When Andrew O’Donohue had an opportunity to work for the US State Department in Turkey, his Armenian-American grandfather warned him against it. For a month, the older man clipped out local newspaper articles about political conflicts in the Middle East. O’Donohue assured him it was safe.
Only a week into his internship at the US Consulate in Turkey, though, O'Donohue witnessed a military coup attempt, with tanks in the streets and fighter jets in the skies. Stationed in Istanbul during the summer of 2016, he watched as the country’s military tried to overthrow the elected government. The experience left a lasting impression.
“I saw how painful it was for my Turkish friends and classmates to watch protections for their democracy deteriorate,” he says. “That experience made me afraid for democracy in the US too. It made me want to understand why democracies around the world are in danger and how we can protect them.”
O’Donohue’s 2025 Harvard Horizons project, “Law versus Democracy,” takes that concern in hand, examining why courts defend or undermine democracy in Turkey and also Israel. He finds that, when one party gains disproportionate power over a nation’s judiciary, it becomes more likely to appeal to friendly courts instead of voters, courts undertake activism against elected governments, and voters lose faith in courts.
Referee or Combatant?
One of O'Donohue's faculty mentors, Clarence Dillon Professor of International Affairs Melani Cammett, describes the student's research as "exploring the conditions under which actors succeed or fail to halt democratic backsliding."
"Andrew asks why judiciaries sometimes check powerful, illiberal governments, even when formal safeguards for judicial independence are lacking," she continues. "Under what conditions do courts possess or lack the power to ensure that governments comply with adverse rulings? When are courts able to enforce their anti-authoritarian rulings, and from where do courts derive this power?"
The author of the book, Democracies Divided: The Global Challenge of Political Polarization, O’Donohue says the assumption that an independent judiciary will defend democracy is foundational for citizens in the United States and dates back to the country’s founding thinkers, including James Madison and Alexander Hamilton. But around the world, courts often act as accomplices of democratic erosion.
“My research argues that courts undermine democracy when one political camp gains disproportionate power over the judiciary—often because the rules for appointing judges allow one side to capture the courts,” he says. “When this happens, it creates several dynamics that are damaging for democracy: political parties become more likely to appeal to friendly courts instead of persuading voters, courts become more likely to undertake activism against elected governments, and voters lose faith in courts and even support politicians’ efforts to pack them.”
O’Donohue examined how courts defend or undermine democracy by studying two polarized countries that have grappled with democratic backsliding: Turkey and Israel.
Turkey: Capturing the Courts
Over two years living in Turkey, O’Donohue spent several months interviewing dozens of high-ranking members of the Turkish legal community. He also collected an original data set of 3,000 decisions by Turkey's Constitutional Court to conduct a fine-grained analysis of its behavior. He says that the structure of the Turkish judiciary was almost perfectly designed to allow one political leader and one political camp to seize control of the country’s institutions.
“Before the election of President Erdoğan, the court wasn't responsive to citizens broadly, but was instead beholden to an entrenched political minority,” O’Donohue says. “The president, who was not directly elected at the time, had the power to appoint all the judges on the court without consulting elected politicians. What I find in the data is that when the president asked the court to strike down a given government policy, he won more than 80 percent of the time—much more than other litigants. It was effectively in the president's pocket.”
[In Turkey] a failure of competing political camps to share power over the judiciary created a vicious cycle in which courts were partisan weapons captured by one political camp.
—Andrew O’Donohue
As a result, O’Donohue says that the Constitutional Court tended to make decisions that reflected the interests of the political minority rather than a wide swath of popular opinion. When Erdoğan came to power, however, his party proposed that Muslim women be allowed to wear headscarves on university campuses—a policy of which 75 percent of the Turkish public approved. The secular minority in Turkey opposed the policy and the court struck it down—a move that actually enabled Erdoğan to garner public support for amassing judicial power.
“He told his voters, ‘The court is effectively an instrument of one political camp. You need to give me more authority to make it more responsive,’” O’Donohue says. “And so Turkish citizens voted in favor of a constitutional referendum in 2010 that expanded the size of the court, allowed Erdoğan to make new appointments, and over time gave the government a supermajority. A failure of competing political camps to share power over the court created a vicious cycle in which courts were partisan weapons captured by one political camp.”
Israel: Remarkable Resistance
In Israel, by contrast, O'Donohue finds that the government tried—but failed—to overpower the judiciary, even after more than a decade in power, and encountered widespread societal resistance to an attempted judicial overhaul. The contrast made him want to understand how courts can mobilize the public to protect themselves and democracy.
Whereas in Turkey the president could make appointments to the Constitutional Court without consultation or constraint, Israel’s legal system emphasizes judicial power sharing. To appoint a new judge on the Israeli Supreme Court, the system uses a selection committee that shares power between legal professionals and elected politicians, who include both members of the government and the opposition. As a result, when the government of Prime Minister Benjamin Netanyahu attempted to overhaul the judiciary, it faced a historic public backlash.
“Netanyahu was in power for a decade and wasn't able to capture the court, even though he was able to make new appointments,” says O’Donohue, who interviewed over a dozen high-ranking Israeli lawyers for his research. “And actually, when the prime minister attempted to reduce the judiciary's autonomy in 2023, he failed, and there was massive popular resistance and protest.
“I remember interviewing a Turkish judge who was telling me that he was watching the protests in Israel,” O’Donohue continues. “He was almost envious because he was saying, ‘You know, if this happened in Turkey, where the government tried to close the Constitutional Court, maybe 50 people would be protesting.’ But in Israel, a majority of the society supported democratic institutions. The public resistance was really remarkable.”
Andrew asks why judiciaries sometimes check powerful, illiberal governments, even when formal safeguards for judicial independence are lacking.
—Professor Melani Cammett
The Power of Sharing
The conclusion O’Donohue draws from his research is that many democracies urgently need to upgrade their institutions to embrace power-sharing—especially the United States. Cross-national data indicates that the US is a global outlier, with none of the legal institutions that enhance judicial power sharing.
“The US system allows partisan actors to influence legal institutions, whether it's prosecutors or courts,” he says. “So, for instance, as polarization has intensified, there's been a near total collapse of judicial power-sharing around the US Supreme Court. Previously, the Senate filibuster required a bipartisan majority of support to confirm new justices. But the Senate eliminated the filibuster for Supreme Court nominations in 2017, so appointing a justice for life requires only a very narrow partisan majority.”
To take down the temperature, O’Donohue says the judicial process needs to be depoliticized. He supports the reinstitution of supermajorities for Supreme Court appointments. Term limits for judges could also help. So could allowing bar associations and current judges to play a role in selecting judges, as in Canada and Italy. Moreover, O’Donohue says that power-sharing would be beneficial to both major political parties.
“Democrats and Republicans are both worried about the politicization of our institutions,” he says. “Many Republicans, for example, felt that the prosecution of Donald Trump in New York was politicizing the law against a former President. We need a set of institutions that give citizens greater confidence that the law is an impartial institution, not just a weapon of partisan conflict.”
For power-sharing to work, though, both parties have to operate more or less in good faith. What happens when one doesn’t?
“There's a dark side to power sharing,” O’Donohue concedes. “When one side is not operating in good faith, power-sharing can be used to gum up the process, almost as a form of hostage-taking, demanding concessions from an actor that’s been elected by a majority. So, there’s a trade-off. But the alternative is much worse: a system where legal institutions, rather than operating as an umpire of polarized conflict, are increasingly subjects of efforts to pull them in one partisan direction or another.”
O’Donohue says that, ultimately, the solution to political polarization is to upgrade democratic institutions so that governments are more responsive to their citizens. Until then, stasis and gridlock may be the price democracies sometimes have to pay to prevent authoritarian political actors from concentrating judicial power in their hands.
We need a set of institutions that give citizens greater confidence that the law is an impartial institution not just a weapon of partisan conflict.
—Andrew O’Donohue
“Around the world, citizens are frustrated that their politics are polarized and that their democracy isn't delivering widespread economic growth or even effective government,” he says. “We need to upgrade our institutions, especially in the United States, so that we can tackle problems and bridge divides. That’s really the main thrust of my research—how we can renovate our institutions to make our democracy work better and overcome these features of polarization, which in many ways are the incentive structure of our political system.”
Cammett says that, while much research has analyzed how democracies die, O’Donohue’s innovation is to consider why key actors and institutions, such as the judiciary, sometimes keep democracy alive even after an illiberal leader has taken power. “By studying how judges coordinate with civil society groups, opposition parties, and other actors to constrain illiberal leaders,” she says, “Andrew is generating a new theory for understanding regime outcomes and contributing policy-relevant insights on defending democratic institutions. These are the most vital questions for our polarized times."
Don't miss this year's Harvard Horizons Symposium in Sanders Theatre on Tuesday, April 8, 2025. Free and open to the public.
Banner image courtesy of Shutterstock.
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