The Populist Challenge to the European Court of Human Rights

The past decade gave rise to serious criticism of the ECtHR. This article analyzes the position of the ECtHR with regard to a more recent phenomenon challenging the ECtHR – an unprecedented wave of populism in Europe. The article argues that the rise of populism not only intensifies the pressure on the ECtHR; it poses a serious and distinctive challenge to the ECtHR since supranational judicial review is at odds with the populist ideology. What makes the populist challenge to the ECtHR distinctive is the combination of the ideological basis of populism, its wide appeal and capacity to reach ordinary people, and populists’ tendency to change the institutional landscape and remove limitations on power. With respect to the last point, the article takes stock of the ECtHR’s institutional setting through the prism of the populist challenge. It concludes that the Strasbourg Court is quite well-equipped to prevent or withstand eventual populist attacks targeting the structural features of the Court or the judicial personnel. The main features of the ECtHR’s resilience are decentralization of the system, rather high level of judicial self-government and institutional safeguards of judicial independence. However, due to exploiting the “narrative of blame”, populism is very strong in another anti-court strategy – achieving gradual erosion of an institution through change of public discourse and delegitimization. This strategy is particularly threatening for the ECtHR due to its vulnerability to legitimacy challenges manifested in the past decade. As a result, the populist challenge will likely require careful management of the ECtHR’s social legitimacy and changes to the ECtHR’s legitimacy-seeking strategy.