—Tatiana Paula da Cruz[1] and David Trubek[2]
A constitutional court is built to do something almost no one else in a democracy can do: tell the majority it has gone too far. But a court has no army, and no budget of its own. Whether its rulings mean anything depends on other people choosing to honor them, including the officials who must carry them out, and, as Barry Friedman has argued, the public that those officials ultimately answer to. That dependence is the soft spot at the heart of judicial power, and populists everywhere have figured out how to press on it.
Now let’s consider an unlikely pair. Brazil and Germany sit at nearly opposite ends of every standard measure of institutional strength. In V-Dem’s latest data, Germany scores near the very top of the rule-of-law index, around 0.99 on a scale from 0 to 1, where it has remained for decades. Brazil scores far lower and far less steadily: its rule-of-law and executive-constraint scores fell sharply during the Bolsonaro years, from roughly 0.79 to 0.63, and have only recently begun to recover. Public trust follows the same gap. In the most recent World Values Survey, about three in four Germans said they had confidence in their courts, against only about half of Brazilians.
The courts themselves are built differently, too. Germany’s Federal Constitutional Court is a specialist institution: it carries out constitutional review and little else. Brazil’s Supremo Tribunal Federal (STF) is a hybrid apex court that also serves as a court of last resort and tries sitting politicians, often through far-reaching decisions handed down by individual justices.
A threat the democracies share
Populist leaders win real elections with real majorities, and then encounter a common problem: how to consolidate power without tripping democracy’s alarms. As Steven Levitsky and Daniel Ziblatt have argued, modern democracies rarely die by coup. They are taken apart gradually, from the inside, as elected leaders turn democratic procedures against democratic safeguards.
Courts are the first target, for a simple reason. They can typically void executive action, shield minorities, and hand the opposition a legal foothold, and they are a quintessential institution that a popular majority cannot simply outvote. That is exactly what makes them worth capturing or sidelining. And the damage tends to show up fast: when courts are weakened, rule-of-law scores fall measurably within a single political term in office.
The methods vary, but the playbook is consistent. Some leaders rebuild the courts through law: Viktor Orbán in Hungary and the Law and Justice party in Poland lowered retirement ages, reconstituted judicial councils, and packed the benches, while Erdoğan purged thousands of judges after the 2016 coup attempt in Turkey. Others go after the courts’ standing in public opinion. Examples are López Obrador’s daily morning press conferences, the mañaneras, and Bolsonaro’s long campaign against the STF. At the far end, El Salvador’s Nayib Bukele simply had his legislature remove the entire constitutional chamber in a single night.
Even Germany is not immune. In 2025, the far-right AfD and allied media ran a sustained campaign against the nomination of Frauke Brosius-Gersdorf to the Federal Constitutional Court, and she eventually withdrew. It was the first time a German constitutional court nomination had collapsed under that kind of public pressure, widely read as a break with a long tradition of quiet, cross-party appointments, and as the moment an American-style confirmation fight arrived at home.
Brazil: the court that defended itself
On 7 September 2021, Brazil’s Independence Day, President Jair Bolsonaro climbed onto a sound truck on Avenida Paulista in São Paulo and told his supporters he would no longer comply with decisions of the STF. He singled out Justice Alexandre de Moraes by name, called him a “scoundrel,” and warned that only God could remove a president from office. It was an open threat to the Court’s authority, delivered to a crowd.
The Hungarian and Polish experience set the expected next steps: a bench packed with loyalists, a chief justice pushed into early retirement, a constitutional amendment rewriting the rules of appointment. None of that happened. Bolsonaro’s supporters later vandalized the Court’s building, but the Court did not break.
What it did instead is the part worth dwelling on. Under sustained pressure, the STF did not simply wait to be rescued. It kept ruling on the President’s executive orders, defended the integrity of the 2022 election against months of attack, declared Bolsonaro ineligible to hold office for eight years, and ultimately convicted both the former president and the leaders of the 8 January 2023 insurrection. A weaker court might have gone quiet and hoped the storm would pass. This one used the levers it controls to make defiance more expensive than compliance.
That distinction matters, because it points to something the standard story misses. As Luciano da Ros and Matthew Taylor describe it, a court that is institutionally weak protected itself less through raw power than by empowering others (primarily Congress and state governors) to do the confronting. What matters is that the STF did not simply fold or wait to be rescued. Under direct attack, it neither retreated nor was captured. A country that entered the Bolsonaro years carrying Latin America’s familiar gap between formal rules and real constraint became, improbably, a case study in judicial resilience.
Germany: fortifying before the storm
Germany read the same warning signs and drew the opposite lesson: act before the threat arrives. Watching Hungary and Poland, and watching the AfD climb in opinion polls at home, German lawmakers noticed that essential features of the Federal Constitutional Court were protected only by ordinary statute, which a simple parliamentary majority could rewrite. In December 2024, a cross-party majority amended the Basic Law to lock those features in. The number of judges, the Court’s two-senate structure, the twelve-year non-renewable terms, the retirement age, and the binding force of its decisions are now included in the constitution itself, where changing them requires a two-thirds majority in both parliamentary chambers.
The amendment passed only days after the governing coalition collapsed, by 600 votes to 69 — an unusual show of unity at a moment of sharp division. The aim was blunt: to make court-packing expensive before anyone tries it.
Part of what pushed this through was a warning closer to home. In Thuringia, where the AfD had become the strongest party, Verfassungsblog’s own Thüringen-Projekt mapped how an authoritarian-populist party could turn existing legal tools against the courts at the state level, including blocking judicial appointments with a one-third minority. Germany chose not to wait and find out whether those scenarios would travel to the federal level.
What the two cases really share is a gap between institutional rules and institutional strength. Brazil entered the Bolsonaro years with a court that was powerful on paper, but in a region where formal rules have rarely constrained a determined president; the open question was whether those powers would hold once tested. Germany faced the reverse: a court of real and widely trusted strength, yet whose most basic features rested on ordinary legislation a simple majority could rewrite. Strong rules without strength in one, strength without secure rules in the other, and in both, institutions moved to close the gap rather than leave it to chance.
The double edge
Neither story has a settled ending, and both carry their own warning.
Brazil’s resilience may prove temporary. Elections are near, the coalition that backed Bolsonaro has not dissolved, and a court that held against one president is not guaranteed to hold against the next. As Diego Werneck Arguelhes has noted, some of what protected the STF was Bolsonaro’s own conduct, which alienated public opinion and pushed rival institutions to the Court’s side. Resilience borrowed from an opponent’s mistakes might not be resilience you can count on.
Germany’s reform may also prove insufficient. The same two-thirds rule that shields the Court also means a determined minority (just over a third of the seats in either the Bundestag or the Bundesrat) could block any future repair, and a large enough far-right bloc could one day reach that threshold. The reform left gaps, too. As Kathrin Hamenstädt points out, the two-thirds rule for actually electing the judges still sits in ordinary law, not in the constitution.
And Brazil offers a warning that runs the other way entirely. A court that accumulates a great deal of power to defend democracy can begin to look like a problem of its own. The STF’s current crisis of judicial governance, including the debate over individual, monocratic decision-making and the expanding role of Justice Moraes, is the natural sequel to its moment of triumph. The same individual authority that let single justices act decisively against an authoritarian president now raises the question of who guards the guardians. From the outside, defending the constitution and overreaching can be hard to tell apart, and a court that has learned to act to preserve its own resilience may not always know where to stop.
The only choice that never works
What Brazil and Germany share is not an outcome. It is a decision. One country’s court fought back from the bench while the attack was underway. The other’s parliament reinforced the court before the attack could come. Neither knows yet whether it will be enough.
That is the uncomfortable part. No model comes with a guarantee. What we do know is the one approach that fails every time: sitting still and trusting the constitution to look after itself. It won’t. A constitution is just words on paper until people decide to stand behind them. Courts do not survive on their own. Someone has to defend them, and sometimes, on the days that matter most, that someone is the court.
Suggested citation: Tatiana Paula da Cruz and David Trubek, Protecting the Guardians: What Brazil and Germany Teach Us About Defending Constitutional Courts against Populism, Int’l J. Const. L. Blog, Jul. 31, 2026, at: http://www.iconnectblog.com/protecting-the-guardians-what-brazil-and-germany-teach-us-about-defending-constitutional-courts-against-populism/
[1] Tatiana Cruz is a Ph.D. candidate in Political Science at the University of Wisconsin-Madison, researching constitutional courts under authoritarian populist leadership. A former legal advisor to the Brazilian Air Force and law professor, she holds a Doctorate in Laws from the University of Brasília, Brazil.
[2] David M. Trubek is Voss-Bascom Professor of Law and Dean of International Studies Emeritus at the University of Wisconsin-Madison and a Senior Global Fellow at FGV Direito SP in São Paulo. A graduate of UW-Madison and Yale Law School, he has written extensively on law and development, globalization, and comparative law.