The Alarming Rise of Judicial Capture by Populist Leaders

Katherine Barlament, The University of California – Santa Barbara

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Abstract 

The rise of populist leaders has sparked concerns worldwide regarding the security and independence of judicial institutions. This article examines how populist leaders have sought to gain effective control over their judicial branches in order to maintain and consolidate political power while suppressing the voices of their opposition through a comparative synthesis of Turkey under Recep Tayyip Erdoğan, Venezuela under Nicolás Maduro, and the United States under Donald Trump. This article determines that the rise of populist leaders can be aided by economic and political instability, and that judicial capture is more effective within states that have weaker institutional safeguards, such as Turkey and Venezuela. However, even states that have strong institutional safeguards, such as the United States, are not immune to judicial weakening through targeted attacks. 

1. Introduction

The independence and integrity of a state’s judicial branch are essential to ensure the proper functioning of the democratic process, as they act as a key check on executive power. Rising discontent with governmental institutions has coincided with the rise of populist leaders across a variety of political systems worldwide. The judicial branch of government is often the first to fall under attack by these leaders in order to further their own political agendas. These attacks employ a variety of different methods. Certain methods employed include constitutional reform and judicial purges, under President Recep Tayyip Erdoğan in Turkey, to court-packing and the erosion of judicial power under President Nicolás Maduro in Venezuela. These attacks have the potential to devastate a nation’s faith in their judicial system and undermine democracy. While the United States has not observed the same degree of judicial capture noted within Turkey or Venezuela, President Donald Trump’s actions raise important concerns regarding how populist rhetoric can weaken even long-standing democracies.

2. Populism and Theoretical Framework

Populism is most commonly defined as a “thin-centered” ideology that separates citizens into two camps within a nation: the elite, who are portrayed as corrupt and distant, and the “people,” who are portrayed as good or morally pure. Populist leaders typically rise to power through their charisma, and claim to represent and fight for the will of the silent majority, or the “people,” declaring that they are their sole authentic representation. This rhetoric is often employed by populist leaders both during presidential campaigns and throughout their time in office. Populist leaders are furthermore skeptical of judicial branches of government and bureaucratic processes and regulations, often seeking to weaken these institutions. These leaders additionally often attack judicial rulings that are in opposition to their own beliefs. In order to ensure their continued political power, populist politicians often engage in judicial capture. Judicial capture refers to the idea that the executive branch of government has gained effective control over decisions made by their juridical branches. Erdoğan, Maduro, and Trump have all employed some, if not all, of these forms of rhetoric in their campaign speeches and actions. They all have additionally attempted to engage in judicial capture or weakening, with varying levels of success. 

3. Turkey: Historical Context and the Rise of Recep Tayyip Erdoğan

Recep Tayyip Erdoğan rose to power through his employment of nationalist “us vs. them” rhetoric, and has maintained his power by sowing public mistrust in governmental institutions, such as the judicial branch. Erdoğan’s quick ascension to power was fueled by heightened religious tensions between Turkey’s traditional Muslim sector and Turkey’s secularist sector. During the 1970s, Mustafa Kemal Atatürk, the founder of the Republic of Turkey, enforced an agnostic system of governance and way of life for the citizens of Turkey. Atatürk favored Western ideologies and believed that in order to modernize Turkey, pro-Islamic and traditional voices needed to be blocked from political life. This led to the alienation of many Turkish citizens, who believed that Islam should be playing a larger role both in politics and everyday life. Erdoğan rose to power by giving a voice to those who held this belief and painting Atatürk’s secularist, Western-oriented elite as corrupt and the enemy. Erdoğan charismatically appealed to those who felt silenced, promising a voice in government and greater political representation, which aided his political ascension to the Presidency. However, these promises went unfulfilled. Erdoğan began to label those who opposed his political policies as terrorists or gang members. He furthermore ridiculed political dissent, effectively labeling his foes as the “other”, or the “them”. His political agenda increasingly focused on silencing critics rather than expanding representation. While this populist rhetoric was central to Erdoğan’s electoral success, it also laid the foundation for a systematic effort to weaken institutional checks on his authority. He has attacked checks and balances on his power, silenced news outlets that criticize his regime, and seized control of the judicial branch, mandating that reporters who opposed his views would receive lengthy prison sentences for speaking out against him. Taken together, Erdoğan’s rise to, and consolidation of, power demonstrates not only that Erdoğan is, in fact, a populist leader, but furthermore demonstrates how populist leaders can facilitate a profound shift towards authoritarian rule.

Since 2013, Turkey’s judicial branch has become a tool employed by Erdoğan to heighten the legitimacy of his regime. In December of 2013, Erdoğan and his close inner circle were accused of abusing their power. The judges and prosecutors who looked into this abuse, or were sympathetic towards this cause, were promptly purged from their positions, thereby stopping these investigations. This judicial capture was further propelled by the 2016 military attempt to overthrow Erdoğan and his government, better known as the Gulen movement. After an overthrow attempt by the Gulen movement, 2700 lower court judges were ousted from their positions after this attempted coup for their alleged sympathy to the cause of the rebels. This caused tensions to rise between the two primary factions within Turkey; those who supported Erdoğan, and those who did not. These judges were swiftly replaced with younger, more inexperienced officials who were loyal to Erdoğan and his cause. People who participated in the Gulen movement were branded as traitors and swiftly sentenced to lengthy jail times for their alleged acts of treason. The replacement of these judges was swiftly followed by a series of amendments to the Turkish constitution in 2017. These amendments allowed Erdoğan to pack the Turkish Supreme Court, or TCC, with judges who favor his political ideologies. Erdoğan has effectively seized control of the judicial branch within Turkey, and has used this control to make judicial decisions that favor his political agenda and his regime. 

4. Nicolás Maduro’s Judiciary Attacks and Impacts on Venezuela

Maduro rose to power during a particularly tumultuous period of Venezuela’s history, employing an “us vs. them” rhetoric in order to seize control of his judiciary branch. Maduro succeeded former President Hugo Chávez, who was, similarly, a populist leader. Chávez relied heavily upon his charisma and his connection with the Venezuelan people to heighten the legitimacy of his regime. Maduro was hand-picked to be Chávez’s successor, and won his Presidential election in 2013 largely due to Chavez’s endorsement. Maduro’s political agenda varied greatly from that of Chávez, but, instead of relying upon charisma to ensure his legitimacy, Maduro focused upon framing his competitors as an elite faction who were enemies of the good or common people. Venezuela was furthermore in the midst of an economic crisis when Maduro rose to power, as Venezuela’s main source of income for the past 50 years, oil reserves, collapsed. Maduro often blamed his political opponents for the ongoing economic difficulties that Venezuela was facing, claiming that they were the cause of a so-called “economic war” between the good and common people against the corrupt elite. Maduro has remained largely unpopular for the vast majority of his presidency, but has maintained political power largely due to his control over Venezuela’s judicial branch, who silenced his political opposition. 

Maduro’s judicial capture began in early 2015, when he urged the appointment of 13 new judges to Venezuela’s Supreme Court, the TSJ. The majority of these judges were sworn in without the proper credentials for this position and without a proper review period (Sonneland). The Venezuelan Supreme Court is composed of 32 justices, and the justices implemented served as a mechanism to block the implementation of laws that would go against Maduro’s agenda. With the Supreme Court now under his control, Maduro chose to weaken the authority of Venezuela’s Congressional branch of government and his political opposition while ensuring the continuation of his Presidency. Venezuela’s Congressional branch, or the National Assembly, were stripped of their budgetary oversight power in 2016, granting this power to Maduro. Furthermore, in 2016, the TSJ ruled that every decision made by the National Assembly was “null and void”, blocking the appointment of deputies who opposed Maduro’s policies within Venezuela’s legislature. These efforts were undertaken in an attempt to ensure the legitimacy of his regime. Through his control of the TSJ, Maduro was, and is, able to systematically silence his political opposition, thereby using the power of the judicial branch as a means to maintain his position. However, these actions represented only the beginning of Maduro’s judicial capture. Control over lower courts has been granted to the TSJ through low tenure rates. These lower court judges often fear losing their position and wait to make decisions about sensitive cases until their superiors have given their approval. This dynamic has proven to be particularly problematic in criminal court cases. Maduro has used his effective control over both the TSJ and the lower courts to prosecute those who oppose his political agenda. Additionally, in 2022, 20 new justices, justices who were largely in favor of Maduro, were appointed to the TSJ. The term length that these justices could serve was extended from 12 years to 24 years, thereby ensuring that those who supported Maduro could stay in power. Maduro himself has been able to remain in power because of his effective control over the judicial branch. Taken together, Maduro’s systematic judicial capture demonstrates how populist rhetoric, when paired with systematic control of the judicial branch, can heighten the legitimacy of a regime while weakening the democratic functionings of the state. 

5. Donald Trump’s Judiciary Attacks within the United States: 

Donald Trump’s political victories both in 2016 and 2024 were set against an extremely tense political and economic background. Within the 2016 elections, voters found themselves particularly concerned with fighting terrorism, domestic employment, and economic policies. The majority of U.S. voters believed that Trump would be more efficient at addressing these concerns. Public dissatisfaction allowed Trump to employ an “us vs. them” rhetoric within his 2016 political campaign, casting his supporters, and specifically blue collar workers, as the “good people” and his political opposition as the “corrupt elite”. Specifically, Trump attacked his political opposition, Hillary Clinton, framing her as dishonest or self-serving, claiming that “she gets rich while making you poor.” This strategy mirrored the divisive rhetoric employed by both Maduro and Erdoğan. This rhetoric was employed throughout Trump’s political campaign, as he continued to portray his political opponents as dishonest and disconnected from ordinary Americans, reinforcing public distrust in established institutions.

Trump garnered additional domestic support through his employment of nationalistic, fear-based rhetoric regarding immigration and terrorism, exploiting a rising sense of fear in order to ensure his political victory. Within the 2016 election cycle, Trump framed Muslim immigrants as security threats, proposing travel bans and immigration restrictions upon certain Muslim-dominated countries. While this “us vs. them” rhetoric helped to garner political support by appealing to the fears of many Americans, it inadvertently fueled hatred and violence, leading to an increase in anti-Muslim attacks and sentiment within the U.S. Within the 2024 election cycle, Trump employed parallel populist rhetoric, this time targeted against Mexican, illegal immigrants, whom Trump blamed for rising prices in housing, health care, and inflation. He furthermore has framed Mexican immigrants as the “enemy from within”, promising to defend the American people from the supposed economic threat that immigrants pose, and blaming his political opposition for the alleged harm these immigrants were inflicting. Immigration was ranked by voters to be one of the most important policy issues within the 2024 elections, and a staggering 90 percent of people who ranked immigration as their #1 priority voted for Trump, with this rhetoric thereby aiding in his victory. This use of polarizing rhetoric led to an increase in partisan division and violent, hateful speech patterns within politics. In part due to rising economic and social uncertainty, as well as his employment of a polarizing, populist, “us vs. them” rhetoric, Trump was able to secure his position as President of the United States both in 2016 and 2024. In order to further his own political agenda and silence his opposition, Trump has furthermore attempted to engage in judicial capture, weakening public trust within this fundamental branch of government. 

Unlike both Maduro and Erdoğan, Trump was unable to achieve complete judicial control. Trump’s rhetoric has encouraged noncompliance with judicial rulings, consistently criticized both judges and judicial rulings, and attacked his opposition. These attacks have weakened public confidence of the judicial branch as well as judicial independence. Trump, during both terms of his presidency, has criticized judicial rulings and justices that do not align with his political ideology. Within his first presidency, Trump referred to the courts as a “joke” and a “laughing stock”. Additionally, during his 2016 presidential campaign, Trump attacked then Supreme Court Justice Ruth Bader Ginsburg, referring to her as an “incompetent judge.” These attacks continued, with Trump labeling judges who made decisions opposite to his as “Obama judges”, implying justices appointed by his political opposition were not to be trusted. This rhetoric undermines public trust in a fundamental branch of government. As of 2024, a mere 35 percent of U.S. citizens have stated that they have faith in the judicial system, in part due to divisive, polarizing rhetoric regarding the courts. This rhetoric has been particularly targeted against justices who oppose his immigration policies, and the Trump administration has refused to comply with an estimated 1/3rd of rulings that go against his agenda. This non-compliance represents an alarming trend towards the erosion of judicial power within the U.S. While unlike Venezuela and Turkey, full judicial capture did not occur, Trump’s actions demonstrate how populist, isolating rhetoric can erode faith in key branches of government. His recent non-compliance additionally raises alarm regarding the power of the judicial branch. 

6. Counterarguments

The United States, Turkey, and Venezuela are fundamentally different states, and operate under different governmental systems, economic conditions, and historical backgrounds. The United States is ranked 17th in the world for ensuring human, personal, and economic freedoms for their citizens, whereas Venezuela is ranked 159th, and Turkey is ranked 142nd. These freedoms help to ensure that a judiciary and democracy remains free and functional. The United States has statistically stronger institutions than either Turkey or Venezuela, allowing for continued resilience against populism. Furthermore, the United States has more safeguards implemented in order to ensure judicial independence. The United States has lifetime appointments of Justices to their Supreme Court, a safeguard against political influence and judicial capture. Furthermore, judicial review remains independent within the U.S., allowing for opposing interpretations of the law. This review, while present in both Venezuela and Turkey, remains largely under the control of the executive who control their Supreme Courts. While it may be argued that because of these differences, these countries are not comparable, the purpose of this article is to shed light upon the populist rhetoric and systemic institutional weakening employed by these leaders. This article furthermore seeks to prove how this judicial capture can undermine trust in the democratic process and lead to the erosion of checks and balances. It may further be noted that the rhetoric cited above is non-comprehensive, and further research should be conducted in order to determine the long-term implications of judicial weakening by populist leaders within democratic systems. 

7. Conclusion

This article has sought to compare and contrast how populist leaders worldwide have undermined judicial independence in order to heighten the legitimacy of their own personal power. Through the examination of Turkey under Recep Tayyip Erdoğan, Venezuela under Nicolás Maduro, and The United States of America under Donald Trump. Within all three of the states examined, these populist leaders have employed a similar “us vs. them” rhetoric that framed the judicial branch and bureaucratic institutions as under the control of elites who sought to undermine and obstruct the will of the “good people”. However, the extent to which judicial capture was achieved varied based upon the strength of the institutional safeguards that were in place. 

In both Turkey and Venezuela, weaker institutional safeguards and political and economic turmoil allowed for the ascension to power of both Erdoğan and Maduro. With their ascension to power came the overtaking of their respective judicial branches of government. While both employed an “us vs. them” rhetoric, Erdoğan employed constitutional reform and judicial purges, while Maduro altered judicial tenure and appointments. Through this, both gained near total control over their judiciary branches. Standing in contrast to this total control is the United States. While Donald Trump employed a similar “us vs. them” rhetoric, and attacked the judicial branch by weakening public trust and avoiding compliance with their rulings, he was unable to gain complete control over the judicial branch of the U.S. He was unable to gain this control in part due to stronger institutional safeguards and freedoms within the U.S. However, Trump’s sustained attacks present a worrying message; that even long-standing democracies can be vulnerable to populist leaders and that their employed rhetoric can weaken faith in a key system of government.