But the details are byzantine, the legal issues are fiendishly intricate, and the government’s nonstop anti-judge propaganda campaign has probably left a mark. Although ordinary people will eventually be harmed by politicized courts, they don’t feel it yet. The government has gambled that the average voter, convinced that judges are members of a distant and unpatriotic elite, will remain indifferent. Law and Justice might be right.
This sentiment is not unique to Poland. European courts and legal bodies have come down clearly on the side of the Polish judges. Europe’s top court, the European Court of Justice, may eventually rule that Polish courts cannot be trusted. But Law and Justice is hardly the only European political party now seeking to stifle the judiciary, and Poland is not the only country where judges are subject to public vilification. The Hungarian government has also spent years undermining its courts, though with somewhat more subtlety. Back in 2016, after a court ruled that the British government would need the consent of Parliament before taking Britain out of the European Union, the Daily Mail, a conservative tabloid, ran a photograph of the judges under the headline “Enemies of the People.” The Conservative prime minister, Boris Johnson, has now begun to consider a “judicial reform” of his own. In the United States, President Donald Trump has attacked judges whose rulings he dislikes, calling them “Obama judges” or “pro-Mexico,” and condemning courts as “totally biased.”
Nor is this only a right-wing trend. During its tenure in office, the far-left Greek ruling party, Syriza, also had a number of public fights with judges, one of whom said the government had planted salacious material about him in a newspaper as a form of intimidation. Independent judges have always frustrated governments that don’t see why unelected arbiters of the law should stand in their way. Tabloids, social media, and the loss of inhibitions about what counts as an acceptable tactic have given politicians new tools to undermine their black-robed nemeses, especially given the reality of popular indifference.
Still, the Polish crisis is by far the deepest, and it has now reached a climax: On January 23, three chambers of Poland’s highest court—60 judges—met in an extraordinary session and ruled that more than 350 judges have been appointed improperly and have no legal standing to hear cases. Judicial bodies loyal to Law and Justice say they won’t recognize the decision. Ziobro denounced it. Deadlock, chaos, and uncertainty have ensued. Which, again, may be intentional.
This confrontation could have a positive outcome, if Polish judges follow the high court’s lead, as, in theory, they are supposed to do. Other observers are less optimistic. Żurek, one of the judges who has been subject to both legal and personal harassment, reckons that the government will ignore the high court’s ruling and aggressively seek to remove its members. The whole point of the smear campaign, after all, was to prepare the public for a wholesale dismissal of this odious “caste.” “We are very determined,” Żurek told me; “we are ready for anything.” He expects defiance of the European Union, attempts to remove sitting judges from their positions, even some arrests. And if the government succeeds? “That will be the definitive end to democracy.” It may also be a harbinger of things to come in other countries too.