(De-)judicialization of politics in the era of populism: lessons from Central and Eastern Europe

ABSTRACT

Law and politics scholarship has been preoccupied with judicialization of politics, often treated as a linear, intensifying trend. This article, however, argues that the rise of populism, particularly East-Central European authoritarian populism, has brought new dialectical dynamics to the judicialization narrative. I examine the relationship between the populist rule and the judicialized structure of governance, and revisit the judicialization theories by providing a conceptual toolkit for analysing the populist backlash against judicialization. The populist ideology suggests that populists should seek de-judicialization. Analysis of Hungarian and Polish cases, however, shows that populists combine different short- and long-term strategies seeking de-judicialization of politics and extreme politicisation of the judiciary, subject to the scope of populists' power and developments in time. Consequently, constitutional courts captured by populists are not always muted. They can be actively exploited for advancing the government's agenda. These measures affect the judicialized triadic structure of governance, normally consisting of the government, the opposition, and an impartial constitutional court. Depending on the techniques employed, the populist court-curbing can lead to a partial return to the dyadic structure, deformation of the triadic structure, and, in the long-term, to the ‘charade' triadic structure turning the constitutional court into an inferior actor.

KEYWORDS:

• Populism
• judicialization
• democratic backsliding
• constitutional court
• Hungary
• Poland

Acknowledgements

I am grateful to Nick Barber, John Ferejohn, Gábor Halmai, Ondřej Kadlec, David Kosař, Hubert Smekal, to the participants in 2019 Law in Context Workshop (Oxford University), JUSTIN Research Meeting (Masaryk University), and PopCon conference on Populist Transformation of Constitutional Law (2021) for their comments, which have significantly improved this text. I am also thankful to the YCC Scholarship Exchange Program organised by the American Society of Comparative Law. The research leading to this article has received funding from the European Research Council (ERC) under the European Union's Horizon 2020 research and innovation programme (grant number 678375 JUDI-ARCH ERC-2015-STG).

Disclosure statement

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

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Notes

1 See Christoph Hönnige, ‘Beyond Judicialization: Why We Need More Comparative Research about Constitutional Courts’, European Political Science 10, no. 3 (2011): 346.

2 Neil Tate and Torbjörn Vallinder, eds., The Global Expansion of Judicial Power (New York: NYU Press, 1995); Alec Stone Sweet, Governing with Judges (Oxford: OUP, 2000); Ran Hirschl, Towards Juristocracy (Cambridge: Harvard University Press, 2004).

3 I understand de-judicialization as a process aimed at preventing a court from reviewing a policy and from intervening in political issues which were previously judicialized.

4 David Kosař, Jiří Baroš, and Pavel Dufek, ‘The Twin Challenges to Separation of Powers in Central Europe: Technocratic Governance and Populism’, European Constitutional Law Review 15, no. 3 (2019): 429.

5 Ran Hirschl, ‘Judicialization of Politics’, in The Oxford Handbook of Law and Politics, eds. G. Caldeira, R.D. Kelemen, and K. Whittington (Oxford: OUP, 2008), 119.

6 Torbjörn Vallinder, ‘When the Courts Go Marching In’, in The Global Expansion of Judicial Power, eds. N. Tate and T. Vallinder (New York: NYU Press, 1995), 13.

7 Yaniv Roznai and Tamar Hostovsky Brandes, ‘Democratic Erosion, Populist Constitutionalism and the Unconstitutional Constitutional Amendments Doctrine’, Law and Ethics of Human Rights 14, no. 1 (2020).

8 Alec Stone Sweet, ‘Judicialization and the Construction of Government’, Comparative Political Studies 32, no. 2 (1999): 148.

9 Ibid.; Martin Shapiro, Courts (Chicago: University of Chicago Press, 1981), 1–2.

10 Allan Brewer-Carías, ed., Constitutional Courts as Positive Legislators (Cambridge: CUP, 2013), 153–64.

11 Other political actors, however, may have their interest in using judicial review of legislation too. See Lubomír Kopeček and Jan Petrov, ‘From Parliament to Courtroom: Judicial Review of Legislation as a Political Tool in the Czech Republic’, East European Politics and Societies 30, no. 1 (2016): 140.

12 Ran Hirschl, ‘The New Constitutionalism and the Judicialization of Pure Politics’, Fordham Law Review 75, no. 2 (2006–2007): 721.

13 Ibid.

14 Luís Roberto Barroso, ‘Countermajoritarian, Representative, and Enlightened: The Roles of Constitutional Courts in Democracies’, American Journal of Comparative Law 67, no. 1 (2019): 114.

15 Stone Sweet, ‘Judicialization’, 164.

16 Alec Stone Sweet, Governing with Judges (2000), 194–204.

17 Stone Sweet, ‘Judicialization’, 164.

18 Ibid., 158.

19 See Yaniv Roznai, Unconstitutional Constitutional Amendments (Oxford: OUP, 2017).

20 See, critically, Daniel Abebe and Tom Ginsburg, ‘The Dejudicialization of International Politics?’, International Studies Quarterly 63, no. 3 (2019): 524; Karen Alter, Emily Hafner-Burton and Laurence Helfer, ‘Theorizing the Judicialization of International Relations’, International Studies Quarterly 63, no. 3 (2019): 458; Doreen Lustig and Joseph Weiler, ‘Judicial Review in the Contemporary World—Retrospective and Prospective’, ICON 16, no. 2 (2018): 369.

21 E.g. John Ferejohn, ‘Judicializing Politics, Politicizing Law’, Law and Contemporary Problems 65, no. 3 (2002): 42; Stephen Gardbaum, ‘Are Strong Constitutional Courts Always a Good Thing for New Democracies?’ Colum.J.Transnat’l L. 53, no. 2 (2015): 306.

22 See the critique by Daniel Brinks and Abby Blass, ‘Rethinking Judicial Empowerment: The New Foundations of Constitutional Justice’, ICON 15, no. 2 (2017): 298; and Björn Dressel, ‘Courts and Governance in Asia’, Hong Kong Law Journal 42, no. 1 (2012): 95.

23 Andrea Pin, ‘The Transnational Drivers of Populist Backlash in Europe: The Role of Courts,’ German Law Journal 20, no. 2 (2019): 225; Yascha Mounk, The People vs. Democracy (Cambridge: Harvard University Press, 2018), 73.

24 Aziz Huq, ‘The People against the Constitution’, Michigan Law Review 116 (2017): 1132.

25 Cas Mudde, ‘The Populist Zeitgeist’, Government and Opposition 39, no. 4 (2004): 543.

26 Luigi Corrias, ‘Populism in a Constitutional Key: Constituent Power, Popular Sovereignty and Constitutional Identity’, European Constitutional Law Review 12, no. 1 (2016): 11.

27 Ben Stanley, ‘The Thin Ideology of Populism’, Journal of Political Ideologies 13, no. 1 (2008): 101.

28 Mudde, ‘The Populist Zeitgeist’, 555; Heike Krieger, ‘Populist Governments and International Law’, EJIL 30, no. 3 (2019): 971; Nadia Urbinati, ‘The Populist Phenomenon’, Raisons Politiques 51, no. 3 (2013): 147.

29 Oran Doyle, ‘Populist Constitutionalism and Constituent Power’, German Law Journal 20, no. 2 (2019): 162.

30 Kurt Weyland, ‘Clarifying a Contested Concept: Populism in the Study of Latin American Politics’, Comparative Politics 34, no. 1 (2001): 14.

31 Jan-Werner Müller, What Is Populism? (Philadelphia: University of Pennsylvania Press, 2016), 20.

32 Pippa Norris and Roger Inglehart, Cultural Backlash: Trump, Brexit and the Rise of Authoritarian Populism (Cambridge: CUP, 2018).

33 Andrew Arato, ‘Socialism and Populism’, Constellations 26, no. 3 (2019): 469.

34 David Fontana, ‘Unbundling Populism’, UCLA Law Review 65 (2018): 1482. See also Bojan Bugarič, ‘Could Populism Be Good for Constitutional Democracy?’, Annual Review of Law and Social Science 15 (2019): 41.

35 See Bojan Bugarič, ‘Central Europe's Descent into Autocracy: A Constitutional Analysis of Authoritarian Populism’, ICON 17, no. 2 (2019): 597; Tímea Drinóczi and Agnieszka Bień-Kacała, ‘Illiberal Constitutionalism: The Case of Hungary and Poland’, German Law Journal 20, no. 8 (2019): 1140.

36 Jan-Werner Müller, ‘Populism and Constitutionalism’, in The Oxford Handbook of Populism, C. Rovira Kaltwasser et al. (Oxford: OUP, 2017), 596.

37 Id.

38 Wojciech Sadurski, Poland's Constitutional Breakdown (Oxford: OUP. 2019), 132.

39 See Ben Stanley, ‘Confrontation by Default and Confrontation by Design: Strategic and Institutional Responses to Poland's Populist Coalition Government’, Democratization 23, no. 2 (2016): 273–4.

40 In this respect, see writings of the Hungarian and Polish authors cited below.

41 Müller, What Is Populism?

42 László Sólyom, ‘The Rise and Decline of Constitutional Culture in Hungary’, in Constitutional Crisis in The European Constitutional Area, eds. Armin von Bogdandy and Pál Sonnevend (London: Bloomsbury, 2015), 24.

43 Ibid., 23.

44 Katalin Kelemen, ‘Appointment of Constitutional Judges in a Comparative Perspective – with a Proposal for a New Model for Hungary’, Acta Juridica Hungarica 54, no. 1 (2013): 16.

45 Kim Lane Scheppele, ‘Understanding Hungary's Constitutional Revolution’, in Constitutional Crisis in The European Constitutional Area, eds. Armin von Bogdandy and Pál Sonnevend (London: Bloomsbury, 2015).

46 Gábor Halmai, ‘Dismantling Constitutional Review in Hungary’, Rivista di Diritti Comparati 3, no. 1 (2019): 35.

47 Scheppele, ‘Understanding Hungary's’, 115.

48 Sólyom, ‘The Rise and Decline’, 23. See also Zoltán Szente, ‘The Political Orientation of the Members of the Hungarian Constitutional Court between 2010 and 2014’, Constitutional Studies 1 (2016): 123.

49 Kim Lane Scheppele, ‘Constitutional Coups and Judicial Review: How Transnational Institutions Can Strengthen Peak Courts at Times of Crisis’, Transnational Law and Contemporary Problems 23 (2014): 72.

50 Scheppele, ‘Understanding Hungary's’, 116.

51 Article 24 (2) d) of the Fundamental Law of Hungary.

52 Fruzsina Gárdos-Orosz, ‘The Hungarian Constitutional Court in Transition – from Actio Popularis to Constitutional Complaint’, Acta Juridica Hungarica 53, no. 4 (2012): 302.

53 Halmai, ‘Dismantling’, 33–4.

54 Scheppele, ‘Understanding Hungary's’, 117.

55 Ibid.

56 Sólyom (‘The Rise and Decline’, 27) described the practice as ‘permanent constitution-making’.

57 Ibid., 29.

58 See Scheppele, ‘Constitutional Coups’, 72 ff.

59 Sólyom, ‘The Rise and Decline’, 24.

60 Bojan Bugarič and Tom Ginsburg, ‘The Assault on Postcommunist Courts’, Journal of Democracy 27, no. 3 (2016): 73.

61 Neil Buckley and Henry Foy, ‘Poland's New Government Finds a Model in Orban's Hungary’, Financial Times, 6 January 2016, https://www.ft.com/content/0a3c7d44-b48e-11e5-8358-9a82b43f6b2f.

62 Stanley, ‘Confrontation by Default’.

63 R. Daniel Kelemen and Mitchell Orenstein, ‘Europe's Autocracy Problem: Polish Democracy's Final Days?’, Foreign Affairs, 7 January, 2016, https://www.foreignaffairs.com/articles/poland/2016-01-07/europes-autocracy-problem.

64 ‘Poland's Government Carries Through on Threat to Constitutional Court’, The Guardian, 23 December 2015, https://www.theguardian.com/world/2015/dec/23/polands-government-carries-through-on-threat-to-constitutional-court.

65 Sadurski, Poland's Constitutional Breakdown, 61–79.

66 Wojciech Sadurski, ‘How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding’, Revista Forumul Judecatorilor 10, no. 1 (2018): 122.

67 Kelemen and Orenstein, ‘Europe's Autocracy’.

68 The battle over the appointments was actually even more complicated. For details see Lech Garlicki, ‘Constitutional Court and Politics: The Polish Crisis’, in Judicial Power, ed. Christine Landfried (Cambridge: CUP, 2019), 146.

69 Wojciech Sadurski, ‘Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler’, Hague Journal on the Rule of Law 11, no. 1 (2019): 68.

70 Ibid., 71.

71 Ibid., 72–3.

72 Bugarič and Ginsburg, ‘The Assault’, 73 and 74.

73 Tomasz Tadeusz Koncewicz, ‘Understanding the Politics of Resentment’, Indiana Journal of Global Legal Studies 26, no. 2 (2019): 501.

74 Tomasz Tadeusz Koncewicz, ‘Of Institutions, Democracy, Constitutional Self-Defence and the Rule of Law’, Common Market Law Review 53, no. 6 (2016): 1785; R. Daniel Kelemen, ‘Europe's Other Democratic Deficit: National Authoritariansim in Europe's Democratic Union’, Government and Opposition 52, no. 2 (2017): 228.

75 Sadurski, ‘Polish Constitutional Tribunal’, 71.

76 Ibid.

77 Ibid., 74.

78 Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (Chicago: University of Chicago Press, 2000), 75, 106.

79 Radoslav Procházka, Mission Accomplished: On Founding Constitutional Adjudication in Central Europe (Budapest: CEU Press, 2002), 118–19.

80 Schwartz, The Struggle, 106.

81 Wojciech Sadurski, Rights before Courts (Dordrecht: Springer, 2014), 360.

82 Wen-Chen Chang, ‘Back into the Political? Rethinking Judicial, Legal, and Transnational Constitutionalism’, ICON 17, no. 2 (2019): 455; Gardbaum, ‘Are Strong Constitutional Courts’. See also supra note 27.

83 Kosař, Baroš, and Dufek, ‘The Twin Challenge’, 444.

84 Ibid., 430.

85 Some court-curbing advocates argue that the actions taken against the HCC and the PCT merely mark a shift from legal to political constitutionalism, which stresses the parliamentary rule at the expense of strong judicial review. Others, such as Castillo-Ortiz and Halmai, however, have persuasively shown that the concept of political constitutionalism was simply hijacked to legitimize the populist attacks on constitutional courts. See Pablo Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’, European Constitutional Law Review 15, no. 1 (2019): 63; Gábor Halmai, ‘Populism, Authoritarianism and Constitutionalism’, German Law Journal 20, no. 3 (2019): 302.

86 See Andrew Arato, ‘Populism, Constitutional Courts, and Civil Society’, in Judicial Power, ed. Christine Landfried (Cambridge: CUP, 2019), 318; Erik Voeten, ‘Populism and Backlashes against International Courts’, Perspectives on Politics 18, no. 2 (2020): 407.

87 Theoretically, constitutional courts can also decide to ‘voluntarily’ leave the field clear for populists and self-impose a self-restraint approach. However, I do not hypothesise if this would avoid populist court-curbing since both analysed courts initially fought against the populist regimes (see above). On courts’ strategic considerations when facing a populist backlash see Yaniv Roznai, ‘Who Will Save the Redheads? Towards an Anti-Bully Theory of Judicial Review and Protection of Democracy’, William & Mary Bill of Rights Journal 29, no. 2 (2020): 327.

88 For my understanding of de-judicialization see supra note 4.

89 Such power includes not only the number of seats in the parliament, but also the level of public support, and the government's concern over international reputation.

90 Supra note 59.

91 Katalin Kelemen, ‘Access to Constitutional Justice in the New Hungarian Constitutional Framework: Life after the Actio Popularis?’, in Law, Politics, and the Constitution: New Perspectives from Legal and Political Theory, eds. Antonia Geisler, Michael Hein, and Siri Hummel (Frankfurt: Peter Lang, 2014), 64.

92 See the critical reactions of international actors summarised in Scheppele,‘Constitutional Coups’, 87–114.

93 I consider the Polish regime less consolidated than the Hungarian one since PiS possesses ‘merely’ a legislative majority. Moreover, there is a greater political and social plurality in Poland, and greater public support for the EU, therefore a greater concern for reputational costs. See Wojciech Sadurski, ‘So, It's the End of Liberal Democracy? Think Again’, Euronews, 16 April 2019, https://www.euronews.com/2019/04/16/so-it-s-the-end-of-liberal-democracy-think-again-view.

94 A legislative majority is sufficient for the paralysis technique if the procedural and organisational rules are enshrined in an ordinary statute and have not been constitutionalised.

95 Some of these measures, of course, can remain permanent.

96 For the sake of completeness, it should be noted that other techniques exist which might eventually lead to provisional de-judicialization, e.g. starving the court out by budgetary constraints. Effects of courts’ interventions can also be evaded by serial non-compliance with their decisions or, alternatively, with overriding case law with constitutional amendments.

97 Depending on the scope and intensity of the techniques employed.

98 I understand politicisation as a process of parties capturing a state institution by party patronage [Petr Kopecký et al., Party Patronage and Party Government in European Democracies (Oxford: OUP, 2012), 7]. The result of high politicisation is that ‘judicial decision-making tends to become politics carried on by other means’ (Ferejohn, ‘Judicializing Politics’, 64). For me, the crucial element leading to politicisation is unilateral control of judicial appointments by a particular faction outside the court (see also Brinks and Blass, ‘Rethinking Judicial Empowerment’, 307).

99 Brinks and Blass, ‘Rethinking Judicial Empowerment’, 299.

100 Following Brinks and Blass (ibid., 299), I understand autonomy as ‘the extent to which a court is designed to be free from control by an identifiable faction or interest outside the court, both before the judges are seated, through the formal process of appointment […], and after the judges have been seated, by formal means of punishing or rewarding judges’.

101 Scenarios in figures no. 2–4 presuppose that the populist party has enough power to choose the new judges on its own, without the necessity to seek agreement with another actor.

102 See Sólyom's (‘The Rise and Decline’, 23) and Sadurski's (‘Polish Constitutional Tribunal’, 71) assessements of the loyal judicial behaviour of the new judges appointed to HCC and PCT.

103 See above the reshuffling of the PCT's and HCC's chambers.

104 See Jan Petrov, ‘The Populist Challenge to the European Court of Human Rights’, ICON 18, no. 2 (2020): 499.

105 I have in mind de facto jurisdictional reach comprising the range of competences, access rules and factual operability of the court (capacity to reach a decision).

106 Brinks and Blass, ‘Rethinking Judicial Empowerment’, 299.

107 Ibid., 301; Dressel, ‘Courts and Governance’, 6.

108 See similarly David Landau and Rosalind Dixon, ‘Abusive Judicial Review: Courts against Democracy’, UC Davis Law Review 53 (2020): 1313.

109 Sadurski, ‘Polish Constitutional Tribunal’.

110 Stanisław Biernat and Monika Kawczyńska, ‘Though this Be Madness, Yet there's Method in't: Pitting the Polish Constitutional Tribunal against the Luxembourg Court’, Verfassungsblog, 26 October 2018, https://verfassungsblog.de/though-this-be-madness-yet-theres-method-int-the-application-of-the-prosecutor-general-to-the-polish-constitutional-tribunal-to-declare-the-preliminary-ruling-procedure-unconstitut/.

111 Tomasz Tadeusz Koncewicz, ‘“Existential Judicial Review” in Retrospect, “Subversive Jurisprudence” in Prospect’, Reconnect, 17 October 2018, https://reconnect-europe.eu/blog/existential-judicial-review-in-retrospect/.

112 Landau and Dixon, ‘Abusive Judicial Review’. See also Raul Sanchez Urribarri, ‘Courts between Democracy and Hybrid Authoritarianism: Evidence from the Venezuelan Supreme Court’, Law and Social Inquiry 63, no. 4 (2011): 855 (referring to ‘courts as instruments of political domination’).

113 Castillo-Ortiz, ‘The Illiberal Abuse’, 67. See also Wojciech Brzozowski, ‘Can the Constitutional Court Accelarate Democratic Backsliding? Lessons from the Polish Experience’, in The Role of Courts in Contemporary Legal Orders, ed. Martin Belov (Hague: Eleven, 2019), 371, at 377 (referring to the PCT as a ‘silent helper of the political branches of government’).

114 Anna Śledzińska-Simon, ‘The Rise and Fall of Judicial Self-Government in Poland’, German Law Journal 19, no. 7 (2018): 1848.

115 PCT, judgment of 20 June 2017, no. K 5/17.

116 Sadurski, ‘Polish Constitutional Tribunal’, 78.

117 Aleksandra Kustra-Rogatka, ‘Populist but Not Popular: The Abortion Judgment of the Polish Constitutional Tribunal’, Verfassungsblog, 3 November 2020, https://verfassungsblog.de/populist-but-not-popular/.

118 HCC, judgment of 5. 12. 2016, no. 22/2016. See Gábor Halmai, ‘Abuse of Constitutional Identity. The Hungarian Constitutional Court on Interpretation of Article E) (2) of the Fundamental Law’, Review of CEE Law 43, no. 1 (2018): 23.

119 Kacper Majewski, ‘Will Poland, With Its Own Constitution Ablaze, Now Set Fire to EU Law?’, Verfassungsblog, 17 October 2018, https://verfassungsblog.de/will-poland-with-its-own-constitution-ablaze-now-set-fire-to-eu-law/; Biernat and Kawczyńska, ‘Though this Be Madness’.

120 On populists’ resistance to international law and international courts see Voeten, ‘Populism and Backlashes’; Petrov, ‘The Populist Challenge’; Tamar Hostovsky Brandes, ‘International Law in Domestic Courts in an Era of Populism’, ICON 17, no. 2 (2019): 576; Mikael Madsen, Pola Cebulak, and Micha Wiebusch, ‘Backlash against International Courts’, International Journal of Law in Context 14, no. 2 (2018): 197.

121 Szente, for example, showed that most post-2010 appointees in Hungary usually do not vote against the government, yet there is some variance among them. See Szente, ‘The Political Orientation’.

122 Gretchen Helmke, ‘The Logic of Strategic Defection: Court-Executive Relations in Argentina under Dictatorship and Democracy’, American Political Science Review 96, no. 2 (2002): 291.

123 The Venezuelan Supreme Tribunal, for instance, guarded the populist president Maduro against the oppositional majority in the National Assembly. See Landau and Dixon, ‘Abusive Judicial Review’. However, it should be noted that this is a specific case since Venezuela is a presidential system. Therefore, the government does not have to leave when it loses the parliamentary majority. Moreover, the pro-presidential forces won the controversial election to the National Assembly in 2020.

124 See Hirschl's (‘Towards Juristocracy’) hegemonic preservation theory.

125 I am thankful to the anonymous reviewer for pointing my attention to the role of the opposition. On deformation of the parliamentary processes by authoritarian populists see e.g. Viktor Kazai, ‘Le renforcement du contrôle de la procédure législative. Une stratégie proposée aux Cours constitutionnelles opérant dans un système populist‘, Annuaire International de Justice Constitutionnelle 34 (2019): 765.

126 R. Daniel Kelemen, ‘The Political Foundations of Judicial Independence in the European Union’, Journal of European Public Policy 19, no. 1 (2012): 43–4.

127 Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown, 2018), 101.

128 Maria Popova, Politicized Justice in Emerging Democracies (Cambridge: CUP, 2012), 23–4.

129 Fryderyk Zoll and Leah Wortham, ‘Judicial Independence and Accountability: Withstanding Political Stress in Poland’, Fordham International Law Journal 42, no. 3 (2019): 904–7.

130 Tom Ginsburg and Tamir Moustafa, eds., Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge: CUP, 2008).

131 Aziz Huq and Tom Ginsburg, ‘How to Lose a Constitutional Democracy’, UCLA Law Review 65, no. (2018): 93.

132 Adam Przeworski, Crises of Democracy (Cambridge: CUP, 2019), 134.

133 Kim Lane Scheppele, ‘The Opportunism of Populists and the Defense of Constitutional Liberalism’, German Law Journal 20, no. 3 (2019): 314.

134 Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy (2019), 43.

135 Accordingly, scholars refer to abusive constitutionalism [David Landau, ‘Abusive Constitutionalism’, UC Davis Law Review 47, no. 1 (2013): 189], legal instrumentalism [Paul Blokker, ‘Populism as a Constitutional Project’, ICON 17, no. 2 (2019): 535], and autocratic legalism [Kim Lane Scheppele, ‘Autocratic Legalism’, University of Chicago Law Review 85, no. 2 (2018): 545] as typical features of populist constitutionalism.

136 N.W. Barber, ‘Populist Leaders and Political Parties’, German Law Journal 20, no. 2 (2019): 130.

137 Halmai, ‘Populism, Authoritarianism and Constitutionalism’.

138 ‘Full text of Viktor Orbán's speech at Băile Tuşnad (Tusnádfürdő) of 26 July 2014’, Budapest Beacon, 29 July 2014, https://budapestbeacon.com/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/.

139 Christian Davies, ‘Poland Is “On Road to Autocracy”, Says Constitutional Court President’, The Guardian, 18 December 2016, https://www.theguardian.com/world/2016/dec/18/poland-is-on-road-to-autocracy-says-high-court-president.

140 See Urribarri, ‘Courts between Demcoracy’, 858.

141 Clark, ‘The Separation of Powers’; David Kosař and Katarína Šipulová, ‘How to Fight Court-Packing?’, Constitutional Studies 6 (2020): 133.

142 See Mark Tushnet, ‘After the Heroes Have Left the Scene: Temporality in the Study of Constitutional Court Judges’, in Judicial Power, ed. Christine Landfried (Cambridge: CUP, 2019), 300.

143 See Part 4 (describing the messy personnel situation at the PCT in late 2015 and 2016).

144 See Part 4 (describing the change of the appointment procedure to the HCC).

145 See Renáta Uitz, ‘Can You Tell When an Illiberal Democracy Is in the Making? An Appeal to Comparative Constitutional Scholarship from Hungary’, ICON 13, no. 1 (2015): 279.

146 Arato, ‘Populism, Constitutional Courts’, 322.

147 Jeremy Waldron, ‘The Core of the Case Against Judicial Review’, Yale Law Journal 115, no. 6 (2006): 1346.

148 See Lustig and Weiler, ‘Judicial Review’, 339–41.

149 Paul Yowell, Constitutional Rights and Constitutional Design (Oxford: Hart, 2018).

150 Castillo-Ortiz (‘The Illiberal Abuse’, 70) depicts captured constitutional courts as devices of ‘de-normativisation of the constitution’.

151 Samuel Isacharoff, ‘Constitutional Courts and Democratic Hedging’, Georgetown Law Journal 99 (2011): 961.

Additional information

Funding

The research leading to this article has received funding from the European Research Council (ERC) under the European Union's Horizon 2020 research and innovation programme (grant number 678375 JUDI-ARCH ERC-2015-STG).

Notes on contributors

Jan Petrov

Jan Petrov is a Postdoc Researcher at the Judicial Studies Institute at Masaryk University, focusing on comparative constitutional law and international human rights law. He earned an LL.M. in International Legal Studies from New York University School of Law where he studied as a Hauser Global Scholar, and a PhD in Constitutional Law from Masaryk University.