The Constitutional Court and the judicialization of Spanish politics

ABSTRACT

The Spanish Constitutional Court has occupied a central position in the Spanish political system since the Transition. Its decisions have completed, and still complete, the articles of the 1978 Constitution. Nevertheless, despite its intense activity in civil and administrative issues, this institution has progressively lost support among public opinion. To a large extent, the Court is now considered a politicized organization serving the interests of Conservative political forces. The growing intrusion of the judiciary in Spanish politics has increased this feeling. How to explain this biased viewpoint? In this paper, we argue that there are two reasons for this declining trust. On the one hand, the Court is the collateral victim of party politics which forced it to take sides. The Court is subject to a process of polarization affecting the whole Spanish political system. On the other hand, the Court has interfered regularly in the political debate by imposing its view, up to blocking parliamentary debates in late 2022. This double process is analysed from a new institutional perspective. We identified four critical junctures involving the Court and political parties, namely the delaying of decisions, the veto on governmental policy, the recusing of justices, and the blockade of appointments.

KEYWORDS:

• Spain
• Constitutional Court
• judicialization
• politicization
• lawfare

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The CGPJ is the organ that rules the judiciary in Spain and is supposed to guarantee the independence of judges and courts. The president of the CGPJ is also the president of the Supreme Court (Article 122 and Organic Law 6/1985 of the 1978 Constitution).

2 The CIS is largely dependent on the Spanish cabinet. This dependency is frequently criticised by the opposition, but this statute has never been modified.

3 On the contrary, the Court faced harsh criticisms in May 2011 when its justices quickly took the decision to allow Bildu – the party representing the interests of radical Basque nationalists – to run the municipal elections (La Vanguardia, 2011).

4 The second oldest conflict that the Court still has to resolve is the quarrel against the Law 7/2010 on Broadcasting, which opposes the Spanish National League of Soccer and a series of radio stations about the price to pay to comment on football matches.

5 The European Commission for Democracy through Law was created in 1990. It is composed of international experts and operates within the Council of Europe to provide constitutional assistance to European countries.

6 This modification followed the same logic as the reform led by Conservative Prime Minister Mariano Rajoy in 2013 when the Government changed the system of election of the General Council for appointing the Supreme Court’s justices.