Deconstructing Judicial Legitimacy: The “Test of Independence” as a Contested Remedy for Poland’s Politicized Judiciary

Abstract

This article examines the mechanisms for testing judicial independence introduced in Poland following the 2017 reforms of the National Council of the Judiciary. Through an analysis of Supreme Court case law from 2020-2024, the study reveals fundamental paradoxes in applying both the juridical test (Supreme Court resolution of 2020) and the statutory test (2022 Act). The research demonstrates that these mechanisms, rather than restoring legitimacy to the judiciary, have deepened systemic fragmentation through selective application, auto-immunization of questioned judges, and procedural asymmetries between court chambers. The article argues that the test of independence constitutes a symptom of constitutional crisis rather than its remedy, reflecting the impossibility of system self-repair when key oversight institutions have been captured. The Polish case offers broader lessons about the fragility of judicial independence and limitations of formal mechanisms in addressing democratic backsliding.