And then the rule of law began to decline—in Europe, throughout the rest of the world, and, sadly, in the United States. Despite the tremendous achievements of CEELI, the rule of law in Central and Eastern Europe started to deteriorate by the 2010s, most prominently in Hungary and Poland. In Hungry, the rule of law began to decline after Prime Minister Viktor Orbán was elected prime minister in 2010 and his right-wing Fidesz party gained a majority in Parliament. In 2012, the Hungarian Parliament adopted a new constitution, which further cemented the governing party’s position and undermined the rule of law by removing a number of checks and balances. The new constitution expanded the size of the country’s constitutional court, which allowed Orbán to fill the new seats with Fidesz loyalists. In addition, all judges over the age of 62 were forced to retire, giving Orbán another opportunity to pack the country’s courts with party loyalists. Allies of Orbán’s Fidesz party also took control over large parts of the country’s media, as broadcasters who had previously criticized Orbán began to mirror Fidesz’s positions. In 2020, Freedom House reclassified Hungary from a democracy to a transitional or hybrid regime.
Once a beacon of democracy in the former Eastern Bloc, Poland is now under threat as democracy has deteriorated in the country in recent years. The country’s slip began in 2015, the year the nationalist Law and Justice (PiS) won control over both the presidency and the parliament. Since taking power, PiS has introduced a series of judicial reforms aimed at asserting more control over the judiciary. PiS packed the Constitutional Tribunal—a top court responsible for reviewing the constitutionality of the law—with party loyalists. Shortly after, the country’s minister of justice merged his position with the prosecutor general, giving the government authority over the country’s prosecutors. The ruling party then assumed control over the National Judiciary Council (KRS), the body that makes judicial appointments, by giving the parliamentary majority the right to nominate judges. Previously, members of the KRS were selected by judges. In response to Poland’s judicial overhaul, the EU made an unprecedented move by invoking Article Seven of the European Union treaty against the country.
Nor has the United States been immune from the decline in the rule of law. Once an inspiration to the world, the United States has experienced a dramatic retreat from the rule of law over the past 20 years. The U.S. Supreme Court’s decision in Bush v. Gore, effectively deciding the 2000 presidential election in favor of candidate George W. Bush, may have been a turning point. The Court’s 5–4 decision fell along ideological lines—the five justices in the majority regularly made up the Court’s conservative majority, while the four justices in the dissent were considered its liberal wing—making the decision ripe for protest. A full-page advertisement in the New York Times, signed by 554 law professors, protested that “[b]y stopping the vote count in Florida, the U.S. Supreme Court used its power to act as political partisans, not judges of a court of law.” The Court’s intervention in Bush v. Gore was widely criticized for creating the perception of partisanship by the judiciary, undermining the public’s trust and confidence in the Court and the rule of law.
In the ensuing years, presidents from both political parties have taken actions that undermined the rule of law. Unable to secure congressional support for several of his programs, former President Barack Obama acted unilaterally by issuing numerous executive orders to create laws implementing those programs—a law-making function exclusively reserved to Congress under the Constitution. And former President Donald Trump, refusing to abide by the electoral process in the 2020 presidential election and filing more than 60 lawsuits to contest the result, demonstrated disregard for the constitutional process. Yet, perhaps as a sign that the rule of law is still strong, over 80 judges appointed by republican and democratic presidents ruled against the former president or one of his allies seeking to challenge or overturn the presidential vote. The January 6, 2021, invasion of the Capitol is widely viewed as an insurrection to overturn the constitutional process of election.
A recent shock to the rule of law in the United States was the decision of the U.S. Supreme Court in 2022 in the case of Dobbs v. Jackson Women’s Health Organization, overturning the longstanding 49-year precedent of Roe v. Wade that held a ban on abortion violated the Fourteenth Amendment of the U.S. Constitution. Critics assailed the Court for making a political decision rather than a constitutional decision in the case.