When Donald Tusk became prime minister, after his coalition defeated the Law and Justice (PiS) party in 2023, the coalition promised the citizens to restore the rule of law. Today, that promise is not being fulfilled due to the fact that you cannot easily repair democratic institutions with the same tactics and tools which cause them to backslide. On September 4th, Poland’s parliament elected Maciej Berek, a close associate and ally of Tusk who was a government minister until August, to the Constitutional Tribunal. The role of the Constitutional Tribunal was originally created in order to check whether laws and other government regulations followed the Constitution. After 1997, the Tribunal became a more powerful constitutional court. It could examine laws passed by Parliament, hear complaints about constitutional rights, resolve conflicts between major government institutions, and cancel laws that violated the Constitution. The appointment is the latest episode in a standoff between the government and President Karol Nawrocki in which each side has pushed its legal powers to their limits. Poland’s journey into fixing their democracy is stalling because both political sides have abandoned institutional forbearance which has created a cycle of constitutional hardball. This is eroding trust in the institutions which the government is actively trying to fix.

The Unwritten Rules of Democracy

Levitsky and Ziblatt argue in How Democracies Die that written constitutions and formal rules cannot sustain democracy solely through the text because they inevitably contain ambiguities or “gray areas.” They tend to rely on two unwritten norms: mutual toleration which is accepting rivals as legitimate, and forbearance where there should be restraint in practicing legal powers to the highest extent. When these norms aren’t followed through with, politicians turn to “constitutional hardball” where they utilize every legal tool to defeat their opponents. This makes politics about winning at any cost rather than compromise, which is not the definition of democracy. These norms go hand in hand with each other as when one side or political party sees its rival as illegitimate it feels like it can play hardball which leads to each act performed, confirming the rival’s sense of threat. Poland is a compelling example of this dynamic, as the spiral is being driven from both directions at once.

The President’s Hardball

Polish law mandates new Tribunal judges to take their oath in front of the president, but doesn’t specify a deadline or consequence if an individual were to refuse. Nawrocki has exploited this ambiguity. After the Sejm elected six judges in March, he swore in only two. Nawrocki has refused to swear in Berek as well, with his spokesman saying the president will not administer the oath until Berek’s legal qualifications are confirmed. When the European Court of Human Rights ordered the Tribunal to admit the remaining four, the Tribunal, still composed largely of PiS-era appointees, ruled that the president had no obligation to do so. By June, Nawrocki had issued 37 vetoes in under a year, exceeding a record of 35 previously set over an entire decade. None of these actions were technically unlawful, which is precisely what makes them consequential. Varol’s concept of “stealth authoritarianism” describes the use of ostensibly legal mechanisms for ends that weaken democratic accountability, making abuse difficult to distinguish from legitimate practice. Nawrocki’s strategy resembles this pattern as it doesn’t violate any rule but exploits the gaps the rules leave to norms. For Polish citizens, this creates uncertainty about whether courts and other democratic institutions are truly independent from political influence. It also weakens public trust in democracy, as legal rules appear increasingly open to manipulation for political advantage.

The Government’s Hardball

After saying that the PiS-era Constitutional Tribunal was illegitimate, the government refused to carry out more than 70 of its rulings. In May, when the Tribunal ruled in favor of the president, Justice Minister Waldemar Żurek said that “there is no ruling.” The government has also started criminal proceedings against several advisers to the president.

The Berek appointment is one important example. In 2024, the governing coalition passed a law that would have stopped recent politicians from serving on the Tribunal. However, President Andrzej Duda vetoed the law, so it never took effect. Because of that, Berek’s appointment was still legal. This shows a lack of forbearance because the coalition supported political restraint when it was convenient, but did not follow that standard when it became difficult. This conflict did not begin recently and has been going on. In 2015, before PiS came to power, the outgoing Civic Platform government also tried to appoint judges to the Tribunal early, which helped begin the cycle of retaliation between the two sides. Supporters of the government say it cannot restore democracy by following the decisions of a court controlled by its opponents. Levitsky and Ziblatt also say that political rivals can only accept each other if both sides follow the rules.

The Cost to Legitimacy

Linz and Stepan argued that democratic regimes survive and do well when citizens regard them as legitimate and effective, having trust in them, and that breakdown becomes likely when problems appear unsolvable within the existing order. Polish public opinion is moving in that direction. A June 2026 CBOS survey found that 61 percent of Poles assess the justice system negatively, compared with 55 percent in 2022 under PiS, including 53 percent of supporters of Tusk’s own Civic Coalition. The effort to repair the judiciary has thus coincided with declining confidence in it and its structure. Meanwhile, Nawrocki has started a council to draft a new constitution with a stronger presidency, the kind of whole institutional replacement Linz and Stepan warned gains appeal when an existing system appears paralyzed.

What Comes Next

This argument leads to a clear test. If the government and the president reach a genuine settlement over the Tribunal before the 2027 parliamentary election and public trust in the courts begins to recover, then the current conflict may prove to be a temporary stage in Poland’s democratic repair. But if both sides continue to escalate and public trust keeps falling, Poland will show the deeper danger of democratic backsliding: democratic institutions cannot be repaired with the same tools that damaged them.