The robe and the baton by Gabriele Schmitt

Democracy has an unfortunate habit of discovering that the weapons used against its enemies are remarkably convenient when pointed at its own institutions and Poland is discovering this the hard way.

Warsaw, November 2026, offers a spectacle: judges suspended, competing claims of legitimacy, political demonstrations, police cordons and a government insisting that extraordinary measures are necessary to repair extraordinary damage. The irony is almost too perfect. Poland's democratic restoration is beginning to resemble another episode in the political theatre it promised to end.

Donald Tusk's argument is not without substance. The Law and Justice Party (PiS), during its eight years in power, systematically transformed Poland's judiciary into a battlefield of political domination. The Constitutional Tribunal, once intended to serve as the ultimate guardian of constitutional legality, became increasingly compromised by appointments, institutional manipulation and decisions that undermined confidence in judicial independence. The European Union's objections were neither imaginary nor ideological hysteria. Poland had a genuine constitutional problem, and pretending otherwise would be intellectual dishonesty. But genuine constitutional injuries do not automatically legitimise every treatment prescribed for them.

The latest confrontation, involving the suspension of Tribunal President Bogdan Święczkowski and his deputy, Bartłomiej Sochański, by senior judge Anna Korwin-Piotrowska, has exposed the extraordinary fragility of Poland's institutional reconstruction. The legality of the suspensions, the authority claimed by the acting leadership and the legitimacy of competing judicial appointments remain fiercely contested. Outside, police protect the institution while politicians accuse one another of destroying it. Inside, the very judges expected to embody constitutional authority are fighting over who possesses it. This is not restoration. It is institutional trench warfare.

And Tusk should understand the danger better than most. A government elected on the promise of democratic repair cannot afford to confuse political victory with constitutional legitimacy. Its opponents may have spent years hollowing out judicial independence, but that does not give the victorious coalition a licence to improvise constitutional procedures, suspend inconvenient officials or treat disputed authority as an administrative inconvenience.

The distinction matters enormously. Democracy is not merely the replacement of one political faction by another. It is the establishment of rules sufficiently impartial that the losing faction can still trust the system to protect its rights. Without that guarantee, elections become temporary permission slips for institutional revenge.

There is an even uglier possibility. Today's exceptional measures could become tomorrow's constitutional precedent. A future government, perhaps considerably less committed to European democratic standards, could invoke Tusk's methods to justify its own intervention against judges. It could argue that institutional paralysis requires decisive action, that judicial resistance represents obstruction, and that police presence is simply necessary to restore order. The vocabulary would be familiar. The political beneficiaries would change.

That is precisely how democratic safeguards become disposable: not always through dramatic coups, but through successive exceptions defended as necessary, temporary and morally superior.

Poland's constitutional crisis is also a warning to Brussels. European institutions cannot demand judicial independence while tolerating its restoration through politically convenient shortcuts. The rule of law cannot become a selective instrument, rigorously enforced against nationalist governments but generously interpreted when liberal administrations encounter inconvenient judges. Such hypocrisy would destroy the credibility of Europe's democratic commitments.

Tusk must resist the temptation to become the anti-PiS version of PiS. His government should pursue transparent judicial reform, constitutionally defensible appointments, independent legal scrutiny and negotiated institutional solutions wherever possible. Difficult compromises are not surrender. They are the price of rebuilding trust.

Poland deserves more than a change of political ownership over its courts. It deserves courts that belong to nobody. Because the ultimate test of democratic restoration is not whether the right people finally occupy the judges' chambers. It is whether those chambers remain independent when the wrong people win the next election. A constitution restored through political muscle may survive the immediate confrontation. But unless its independence is restored through law, the victory will be little more than another occupation.