Across the democratic world, the traditional checks and balances that safeguard constitutional liberties are facing unprecedented structural strain. Renowned global constitutional scholar Professor Tom Ginsburg warns that two of the world’s most historically powerful judiciaries—the Supreme Courts of the United States and India—are failing to sufficiently push back against expanding executive overreach. As political majoritarianism intensifies globally, courts that once stood as fierce counter-majoritarian fortresses are increasingly adopting a posture of strategic deference, leaving constitutional frameworks vulnerable to systemic erosion.
The erosion of judicial assertion is not a localized anomaly but a coordinated symptom of democratic backsliding. In the United States, the polarization of the judicial appointment process has altered the fundamental character of the apex court, aligning its ideological trajectory with specific political movements rather than institutional independence. Simultaneously, the Supreme Court of India, which famously pioneered expansive public interest litigation to defend civil liberties, is facing sharp contemporary criticism for avoiding direct structural confrontations with a dominant executive branch, choosing instead to step back on high-stakes political questions.
Amidst intense debates over how to insulate judges from political interference, the controversial Indian Collegium system has emerged in a surprisingly protective light. While domestic critics frequently lambaste the system—where sitting judges appoint other judges—for its lack of institutional transparency and inherent insularity, Professor Ginsburg suggests it may still represent India’s most viable defense mechanism. In an era where executive branches actively seek to capture judiciaries by packing benches with ideological loyalists, a self-appointing system prevents the outright political subversion seen in other global democracies.
The core dilemma of contemporary judicial administration lies in balancing absolute transparency with institutional survival. Alternative models, such as independent judicial appointment commissions, sound ideal in theory but frequently become channels for executive intrusion in practice. When a political executive possesses overwhelming parliamentary strength, any appointment panel that features political representatives or executive appointees is highly susceptible to manipulation, turning the selection of judges into an extension of partisan policy.