The instrumental abuse of constitutional courts: how populists can use constitutional courts against the opposition

ABSTRACT

If populists capture the constitutional court, the system of separation of powers will change. The constitutional court does not act as a counterweight to the ruling majority but rather as a tool for the ruling majority itself to advance its interests. This article unpacks this aspect of populist constitutionalism, which I referred to as the instrumental abuse of constitutional courts. Most importantly, it presents and analyses five different techniques by which populists can abuse the constitutional court as an instrument against opposition. These techniques are the ‘governing, do not disturb’ technique, consisting in not quashing unconstitutional acts; the legitimation technique, through which populists justify their actions; the delegation technique, through which populists shift responsibility for potentially unpopular actions to the constitutional court; the outright counter-opposition technique, through which populists can achieve the liquidation of their opponents; and the extra-legal technique, involving the use of the authority of judges in the media.

KEYWORDS:

• Populist constitutionalism
• constitutional court
• populism
• democratic backsliding
• the rule of law

Introduction

When a Polish woman finds out that her foetus is irreversibly damaged, she currently cannot legally undergo an interruption.¹ This is also one of the consequences of how populists use the constitutional courts for their purposes and to fight the opposition. In populist constitutionalism, the constitutional courts do not act as a counterweight to the ruling majority but rather as a tool for the ruling majority itself to advance its interests. The aim of this article is to analyse this manifestation of populist constitutionalism and, based on this analysis, to present different techniques by which populists can abuse the constitutional court.

Populist constitutionalism encompasses many different manifestations such as constitutional amendments, changes in electoral laws and legislation affecting the institutional organisation of states, disregard for existing constitutional practices and attempts to introduce new ones or interpretation of existing constitutional rules against their original purpose. One of these manifestations is what I call the instrumental abuse of constitutional courts, encapsulating how populists use constitutional courts for their purposes and against opposition.²

This phenomenon was mentioned in some recent studies – both theoretical³ and empirical.⁴ Nevertheless, only Rosalind Dixon and David Landau and Pablo Castillo-Ortiz addressed this argument in more detail on examples of illiberal constitutionalism.⁵ In this article, I am building on these studies and unpacking this phenomenon from the perspective of populist constitutionalism and separation of powers. Most importantly, I will grasp the practical dimensions of the instrumental abuse of constitutional courts by populists analytically and provide a theoretical framework describing five possible techniques for how populists can do this.

The instrumental abuse of constitutional courts is observed in the clearest way in Poland and Hungary, which, unfortunately, represent sort of a laboratory of populist constitutionalism. Therefore, these countries poses an inspiration as well as an empirical basis for this analysis. However, as populism is a global phenomenon,⁶ populist constitutionalism and its manifestations can occur anywhere, and that is why I do not necessarily link the following conclusions only to a particular state. Thus, the analysis stems from empirical examples mostly from Poland, however, the model of five techniques presented below is intended to be general, applicable to all countries with a similar institutional framework where populists will take power. Moreover, some of the techniques presented bellow are only potential, not so far used in real politics. For these reasons, I will create an imaginary populist in an imaginary country, which will serve as a vehicle for the following analysis. The institutional setting of the imaginary country is based on the setting of countries in Central and Eastern Europe. Its essential aspects are parliamentary democracy and, most notably, a concentrated model of constitutional review. Simply put, to the extent that a given state resembles Popularia, the article’s conclusions will be applicable to such a state.

First up, though, I will provide a brief overview of populist constitutionalism and outline its dimensions. The second chapter follows up by unpacking the situation of captured constitutional courts from the perspective of separation of powers and explains why populists can use constitutional courts as a tool to advance their interests. The third chapter unfolds this argument and presents five techniques of the instrumental abuse of constitutional courts. Finally, the fourth chapter deals with the negative and positive consequences.

The article is not intended as a playbook for populists. Instead, it builds a theoretical framework for a more systematic grasp of described phenomena. Moreover, it attempts to point out the dangers of taking control of the Constitutional Court, which may not be obvious at first glance and have not yet been thoroughly addressed in the existing literature. The work could also become a starting point for thinking about how to set up constitutional frameworks in such a way that particular abuses do not occur or are much more difficult to implement.

Populist constitutionalism and its dimensions

If many scholars referred populism to as a contested concept,⁷ this is even more true of populist constitutionalism as it represents the interconnection between populism and another ambiguous term, constitutionalism. This part thus aims to clarify this concept for a better understanding of the following sections unpacking one of its manifestations.

For the purpose of this article, I employ the widely-accepted⁸ Cas Mudde’s definition of the populism as a thin-centred ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, ‘the pure people’ against ‘the corrupt elite’, and which argues that politics should be an expression of the general will of the people.⁹ Apart from this antagonistic relationship between two groups and the emphasis on the general will of the people, antipluralism is the third necessary aspect of populism.¹⁰ Only they, the populists claim, represent the people and their will; the others, whether political rivals or just those who do not support the populists are an amoral and reprehensible elite.

Constitutionalism, on the other hand, I perceive from both the negative and positive perspectives as a set of established processes and institutions regulating the exercise of state power; this state power is exercised within and through defined structures.¹¹ Although some scholars link constitutionalism with various normative ideas such as political liberalism,¹² at least for analytical purposes is more useful to take a thinner, value-neutral approach.¹³ The definition of constitutionalism affects the answer to whether or not it can be interconnected with populism. If we fill constitutionalism with the normative ideas of political liberalism, we inevitably conclude that populist constitutionalism is a contradiction in terms, and there is no such thing.¹⁴ Conversely, if we concede that constitutionalism can also be illiberal,¹⁵ the existence of populist constitutionalism must be admittable as well. Populist constitutionalism represents one of the types of illiberal constitutionalism. It (mis)uses the constitutional framework to achieve its ideas of the good state, even though these ideas may not seem appropriate from the perspective of the Western model of liberal democratic states.¹⁶

However, populist constitutionalism is not another normative critique of legal constitutionalism such as political or democratic constitutionalism.¹⁷ Contrariwise, it is an empirical concept based on the phenomenon of political reality. Its content emerges from how populists use constitutional frameworks in practice, not primarily on ideals predetermined by academics. It is important to note that just as there are dozens types of populism,¹⁸ we can also observe many varieties of populist constitutionalism.¹⁹ Nonetheless, for the purposes of this article, I am using the ‘pure’ version of populism and populist constitutionalism without connection to a particular ‘thin’or ‘thick’ ideology. I am working with the core features of populism as well as populist constitutionalism, which can be observed in all of their varieties.²⁰

One of the key methods of populist constitutionalism is what Rosalind Dixon and David Landau called ‘abusive constitutional borrowing’.²¹ Populists borrow designs, concepts, and principles inherent in legal (liberal) constitutionalism and use them for their purposes in the selective, acontextual or/and anti-purposive way.²² A perfect example is their attitude to the judiciary – populists are only opposed to courts as long as they produce outcomes that are unfavourable or ‘morally wrong’ from their perspective. Once they do not, populists no longer discard the courts’ powers but rather use them to their advantage.²³

Based on the current empirical knowledge, populist constitutionalism manifests itself in three dimensions: (1) populist constitutional-making; (2) populist quasi-constitutional law-making; and (3) populist constitutional interpretation. The first dimension encompasses the creation of a new constitution or amendments to the existing one. In contrast to the following two dimensions, it requires that populists have the political power needed, according to the existing constitution, to change the constitution. This is the case, for instance, of Viktor Orbán and his Fidesz party in Hungary, where, thanks to the constitutional majority obtained in the 2010 elections, Orbán's government was able to adopt a new constitution.²⁴

Those populists who do not hold such political power usually combine the second and third dimensions. Quasi-constitutional law-making, the second dimension, comprises changing the existing constitution through ordinary laws, for which populist governments have political power.²⁵ They enact laws that directly affect and often unconstitutionally alter constitutionally enshrined institutions – electoral laws, laws regulating the judiciary, the prosecution or the regulation of the media are, for example, at stake.

The third dimension involves informal ‘changes’ to the constitution through its interpretation, whereby original liberal democratic values are replaced by others, exalted by populists. Furthermore, this interpretation is often selective, out of its original purpose and can therefore be described as acontextual formalism.²⁶ The aforementioned narratives of populism – mainly an idea of virtuous people as a homogeneous entity with the same interests – as well as the particular ideology to which populism is linked are also reflected in the interpretation. For instance, nationalist populism will strongly emphasise national identity in its interpretation.²⁷ Populists also disregard existing unwritten rules and constitutional conventions and create their own, new ones instead.²⁸ This dimension manifests itself both in ordinary political action (e.g. the interpretation of constitutional rules in parliamentary debate) and in the application of the constitution in acts of the executive (e.g. questions of the appointment of judges or members of various councils), and can also be accepted directly or indirectly through the arguments of the parties by populist-leaning courts. The third dimension is closely related to the second and often serves as a justification for a particular expression of the quasi-constitutional law-making, which critiques labels anti-constitutional.

In the next sections, I will follow up on these three dimensions and will thoroughly discuss one of these manifestations of populist constitutionalism – the instrumental abuse of constitutional courts.

Take over the constitutional courts and disruption of separation of powers

The second and third dimensions (i. e., populist quasi-constitutional law-making and populist constitutional interpretation) are, in countries with a concentrated model of a constitutional review, inextricably linked to the control of constitutional courts, which would otherwise presumably curb circumvention or outright violation of the constitution. Jarosław Kaczynski, the leader of Poland's populist and co-ruling Law and Justice party, knows well such a situation from his party’s first government engagement between 2005 and 2007, when the Polish Constitutional Tribunal, still independent at the time, thwarted several reforms relating to the media, assembly law and lustration.²⁹ Therefore, in order to implement the above-described dimensions of populist constitutionalism, it is necessary to win over the Constitutional Court, which is supposed to guard the Constitution and possesses the power to annul acts of parliament and government. In other words, populists must ‘domesticate’ constitutional courts.³⁰

The difference between populist regimes and authoritarian or totalitarian regimes, especially those of the twentieth century, is (among other things) that while the latter generally put constitutional courts out of business altogether and entrust politically sensitive matters to other authorities, the current populists in government seek to dominate constitutional courts as soon as possible and then use them to their advantage.³¹ Pablo Castillo-Ortiz calls the populist approach to the (constitutional) courts ‘opportunistic instrumentalism’ – as long as they do not produce the right results from a populist point of view, the populists describe courts as elitist bodies that restrict the will of the pure people; once they have captured them, the enemy becomes a friend.³²

The ways how to control constitutional courts vary depending (again) on the political power of the populists, the institutional design of the state in question, and possibly the political culture. In any case, to rein the constitutional court as a centralised body made up of a small number of judges is not a very difficult mission. We can distinguish between informal and formal (legal) ways of capturing (constitutional) courts.³³ The informal ones include both ‘sticks’, i.e. negative tools such as in the long-term not very effective threatening of individual judges with various sanctions ranging from disciplinary sanctions, salary reduction to reassignment to a lower position, and ‘carrots’, i.e. various benefits for judges who will rule as required.³⁴ Informal instruments also encompass the threat of budget reductions for a particular court.

Formal tools of capture are so-called court-packing and court-curbing. Court packing means an intentional irregular change in the personal composition of the court that creates a new majority of the protégés at the court or restricts the old one.³⁵ There are many techniques of court-packing, such as lowering the retirement age of judges, increasing their number (and thus altering the majority on the court), or shortening the length of their terms at office.³⁶ The result should be a court packed with loyalists that is personally subordinate to the populist government.³⁷ The essence of court-curbing lies in the blocking or at least hindering of the court functions. This may consist, for instance, in the non-publication (and thus ineffectiveness) of court judgments or in the modification of the majority necessary for invalidation of the legislation.³⁸ Court-curbing, however, does not allow, or only to a very limited extent, to use the court actively for its own purposes. The last and very different formal way is the creation of a completely new court while abolishing or marginalising the existing one. Given that this is a very radical step, it is not a very common and potentially likely method.

If courts are taken over, the balance of power is dramatically disrupted.³⁹ The system of separation of powers, as one of the principles of legal constitutionalism, will change. A crucial aspect of it – the system of checks and balances – means that each branch of government has swords against the other, by which one branch keeps the other within proper limits and shields by which one branch defends itself from undue interference by the other.⁴⁰ Swords can then be identified, in the classical sense, with checks and shields with balances.⁴¹ Constitutional courts, as the fundamental institutions of the judiciary, have, within this system, swords in particular in the form of the ability to review (and strike down) legislative and executive acts. Yet, if populists take control of both the legislative (thanks to electoral victories) and the executive (derived from the legislative) powers, and if they also capture the constitutional court (let us leave aside ordinary courts for now), they will have swords in their hands, with which they will not stab themselves, but – naturally – their enemies. Checks and balances will therefore no longer operate so much between the branches of state power but will be used against those who would threaten the populist unity of power – opposition. It is worth repeating at this point that by ‘opposition’ I mean, in a broad sense, all critics of populist government – from political opponents to civil society and the media to academics.

Thus, after the capture, the function of constitutional courts is turned completely upside down. Rather than acting as a watchdog for political actors, they function as a partner in helping to eliminate most of those watchdogs.⁴² Hence, constitutional courts perform a different function in populist constitutionalism than in legal one.⁴³ Once the ruling populists succeed in packing them with their own people, they may be instrumental not in protecting democracy and the rule of law but rather in the decline of these values.⁴⁴

To conclude this section, let me illustrate the above theoretical discussion with the example of Poland. When the populist Law and Justice party took power in October 2015, Jaroslaw Kaczynski declared that he wanted to ‘build a Budapest on the Vistula’⁴⁵, in comparison to his declared role model, Viktor Orbán, he was in a different situation. Kaczynski could not employ the first dimension of populist constitutionalism because PiS did not win a constitutional majority in the elections. Moreover, in the 2019 elections, it also lost the Senate, whose approval is needed to pass a constitutional amendment. Thus, in Poland, we can observe a combination of the second and third dimensions of populist constitutionalism – both bypassing and amending the constitution through ordinary laws and informal changes through constitutional interpretation. An example of the second dimension, quasi-constitutional law-making, is the lowering of the retirement age for Supreme Court judges from the original 70–65. There would be nothing very controversial about this in itself unless this change also affected all existing judges, whose constitutionally mandated length of tenure was thus reduced.⁴⁶ Under the second dimension of populist constitutionalism belongs, for instance, the fundamental change in the prosecution system in 2016, when the position of the previously independent Prosecutor General was merged with the position of the Minister of Justice. From then on, the Minister of Justice can interfere in the criminal proceedings and reverse the decision of any of the subordinate prosecutors.⁴⁷ The example of Poland also shows that especially the second dimension of populist constitutionalism is the most problematic from the perspective of the rule of law, as the outright violation of the statutes is easily visible. This is also why Poland faces more activity by the European Commission and many proceedings before the Court of Justice for breaches of the rule of law than Hungary, where we can observe rather the first dimension.⁴⁸

An example of the third dimension, populist constitutional interpretation, can be seen in the interpretation of how the National Judicial Council, which is responsible for the appointment of judges, is to be elected. The Polish Constitution, specifically Article 187, only explicitly lays down how many members of the Council are appointed by the President, the Sejm, and the Senate. The rest of the Council is to consist of judges. Although the meaning and purpose of the norm imply that the ‘non-political’ part of the members is not only to be formed but also elected by the judges themselves, the ruling party interprets this to mean that they are selected by the Sejm, which PiS controls.⁴⁹

Hand in hand with both dimensions went the endeavour to control the Constitutional Tribunal. To do this, PiS initially grasped a strategy of court-curbing to paralyse the Constitutional Tribunal. They, for instance, increased the majority required to quash a statute, restricted its jurisdiction or refused to publish some undesirable decisions in the official gazette.⁵⁰ Concurrently, PiS sought to control the court through court-packing. Already in the autumn of 2015, shortly after the parliamentary elections, President Andrzej Duda refused to appoint all five new constitutional judges elected by the ‘old Sejm’, in which the now opposition Civic Platform had a majority. With three of them, it was blatantly unconstitutional.⁵¹ Despite this, all five judges were re-elected by the PiS-dominated ‘new Sejm’.⁵² Other court-packing techniques appeared within the court. In spring 2017, one of the unconstitutionally appointed judges and soon to be vice-president, Julia Przyłębska, sent her opponent and the current president, Stanislaw Biernat, on forced leave, where he remained until the end of his mandate.⁵³ Przyłębska, who subsequently became President of the Constitutional Tribunal in Biernat's place, also altered the composition of the individual senates in the way that pro-government judges would always have a majority and, in this vein, changed the judge rapporteur – including ongoing cases.⁵⁴ Due to a combination of the court-packing and natural turnover, pro-government judges gradually prevailed. Therefore, the Constitutional Tribunal has become an instrument of the pro-government majority.⁵⁵ As Wojciech Sadurski points out, ‘the ruling party uses it (the Constitutional Tribunal) as a vehicle for its own political plans, and in particular as an ally in the confrontation with other bodies, such as the SC.’⁵⁶

How a ruling party could use the constitutional court as a vehicle for its own plans, I will elaborate on in the following section.

Five techniques of how constitutional courts could be abused against opposition

Let us imagine a country in Europe that is a member of the European Union and the Council of Europe. Let us call it Popularia. This fictional state – with an constitutional and geopolitical setting akin to that of countries in Central and Eastern Europe – will serve as a vehicle for the ensuing presentation of five techniques of the instrumental constitutional court’s abuse by populists in a particular country. Thanks to the imaginary state, the analysis is able to go beyond the so far empirical knowledge (see the fourth technique), and, further, it is emphasised that the subsequent techniques are not necessarily linked to the one, specific state.

Popularia is a standard parliamentary republic with a bicameral parliament and is considered by international reports to be a free country with a competitive party system. The institutional design enshrined in the constitution was designed along the lines of legal constitutionalism. We find here separation of powers as we know it in most European Union countries, and also the Constitutional Court, as a judicial body for the protection of constitutionality, with the power to abstract as well concrete constitutional review. Its powers do not differ from those of other constitutional courts in Central and Eastern European countries.

Two years ago, parliamentary elections were held in Popularia. A populist party, led by a charismatic leader called Populus, won a solid majority of seats in both chambers. Populus's party thus possesses a majority to pass ordinary laws, lacking the mandates to reach the qualified majority needed for constitutional laws. In any case, as Prime Minister, Populus has formed a government whose actions over the last two years have been indicative of the second and third dimensions of populist constitutionalism (i.e. quasi-constitutional law-making and constitutional interpretation). In less than two years of government, Populus has managed to take control of the Constitutional Court, aided both by the fact that the presidential office responsible for appointments is held by a politician favours Populus and by the fact that the mandate of a third of the judges expired during this year. The necessary majority of judges loyal to the ruling party was then obtained by Populus using court-packing techniques. The Constitutional Court of Popularia is thus personally subordinate to the ruling party.

Populists do not usually substantially alter the powers of constitutional courts; they use them as they were designed by legal constitutionalism. For example, the Polish Constitutional Tribunal Act of 2016, when the court was already under the control of the ruling Law and Justice party, made only cosmetic changes, even though the government had the majority to draft the law as it wished.⁵⁷ Similarly in Popularia, the ruling party did not make any formal changes to the Constitutional Court's powers.

Nevertheless, as described above, the real role of constitutional courts changed crucially. Although they were originally intended to protect the minority from the oppression of the majority, in populist constitutionalism they are more likely to protect the majority. They are used in various ways by the ruling majority as a tool against opposition.⁵⁸ It is worth repeating at this point that by opposition I mean, in a broad sense, critics of the populist government – from political opponents to civil society and the media to academics.

Let us now use the example of our imaginary populist Populus to explain how the constitutional court can be used against opposition in this institutional framework. In the following paragraphs, I will present five techniques of such an instrumental abuse of constitutional courts which are: (1) the ‘governing, do not disturb’⁵⁹ technique; (2) the legitimisation technique; (3) the delegation technique; (4) the outright counter-opposition technique; and (5) the extra-legal technique. These techniques emanate predominantly from the empirical knowledge of populist constitutionalism in Poland (that is not the case of the fourth technique though) and analysis of the existing literature on this topic.

(1) The ‘governing, do not disturb’ technique. The first technique can be referred to as passive. The Constitutional Court simply does not interfere negatively with Populus’ government, not throwing a spanner in its works. Quasi-constitutional law-making very often circumvents the Constitution or directly violates some constitutional norms. Similarly, interpreting constitutional rules selectively, acontextually or against their original purpose will in most cases establish unconstitutionality. In legal constitutionalism or other, in which the constitutional court lives up to its role as the guardian of constitutionality, the constitutional court would have to strike down such acts – whether they are legislation or other derogable acts of the executive. For example, in Poland, the Constitutional Tribunal, before the government managed to capture it, quashed several laws (or amendments)⁶⁰ regulating its functioning and directly affecting its independence in December 2015 and early 2016.⁶¹

Populus no longer has to fear a similar intervention by the highest judicial body. The Constitutional Court, staffed with subordinate judges, will dismiss any petitions for a declaration of unconstitutionality and uphold the acts of the Populus government, not only those restricting the rights of opposition. The same was the case with the aforementioned legislation on the Constitutional Tribunal in Poland, which the Constitutional Tribunal found constitutionally compliant at the end of 2016, although a few months earlier, when it was still independent, on acts with analogical content it had ruled the opposite.⁶² The aim of this technique is thus to reshape the constitutional court into a passive bystander who does not interfere with the government's actions anyway. It is able to do so but is unwilling to do so.⁶³

(2) The legitimisation technique. The second technique is closely related to the previous one, but goes even further. The essential social function of courts lies in their power to authoritatively resolve disputes between parties.⁶⁴ Moreover, Populus as a shrewd populist knows that the people of his country, after years of liberal constitutionalism, perceive courts as independent arbiters with a high degree of expertise in legal matters (despite any reservations about them). Therefore, if the opposition challenges the constitutionality of his acts, Populus can either appeal to the Constitutional Court’s judgment rejecting opposition claims and declaring the act as in accordance with the constitution (see the previous method), or he can initiate proceedings before the Constitutional Court himself to demonstrate what the (un)constitutionality is all about. The Constitutional Court, thanks to its function of authoritatively settling disputes between the parties, is capable of resolving, at least ostensibly, this dispute between the government and opposition. It is no coincidence that it will decide in favour of the Populus government, otherwise Populus would not even have made such a proposal. This will increase the legitimacy of such an act – it is not only part of the political scene that now thinks that the act is in accordance with the Constitution, but also the highest judiciary body. Overcoming every other institutional obstacle, even if de facto illusory, increases the legitimacy of the act in question.

Accordingly, constitutional courts act as a ‘rubber stamp’.⁶⁵ All unconstitutional acts receive the stamp of constitutional conformity from the court, which formally has the power to quash them, but does not use it against the government (unless it is desirable), otherwise it would become a snake Ouroboros devouring itself. The constitutional courts have only an ornamental function in this respect – they do not use their swords (checks) against the ruling majority.⁶⁶ On the contrary, they serve as a legitimising tool.⁶⁷

As indicated, this technique can be used in two ways: passively and actively. The passive way consists in the fact that the captured constitutional court dismisses the opposition's motions to strike down government acts (i.e. the first technique). This, in addition to the very survival of the act, also increases its legitimacy since the dispute between the government and opposition has been authoritatively decided by someone third, formally impartial and independent, and the act in question has overcome another institutional obstacle. The populists of course rhetorically exploit the court's judgment in this vein. By contrast, the active use of the constitutional court as a legitimising instrument means that the populists themselves initiate proceedings before the Constitutional Court in order to pronounce the issue. Thus, if the Populist government passes a controversial law, members of the government, or the president, or just ordinary members of parliament, can petition for an ex ante or ex post review of the law by the constitutional court (both possibilities are allowed by the Constitution of Popularia). The court will declare it constitutionally compliant and, in its reasoning (or statements for media), ideally even praise the government for passing such legislation.⁶⁸

For a real-life example, we can return to Poland, where a law stipulating a hierarchy of public assemblies prioritises those that are held periodically (i. e. especially assemblies organised by PiS). These regular assemblies are then protected from any counter-assemblies organised by opposition.⁶⁹ Following the the government-aligned President Duda’s motion, the Constitutional Tribunal found, contrary to the majority opinion of human rights lawyers, that the law is not unconstitutional and does not violate the right to peaceful assembly.⁷⁰

The degree to which the use of constitutional courts as a legitimation tool is effective depends on public perception of them. If there is no public trust in the judiciary, the application of this tool will be limited. Similarly, the effectiveness will be low unless there is at least a minimal degree of autonomy of the court from political power.⁷¹ Yet, we are talking here about a dynamic factor which can be influenced in various ways over time. As far as particular judgments are concerned, their authority, and concurrently their capacity to be used for legitimation, is enhanced by reasoning based on legal rather than political arguments.⁷² In the long run, rulings adverse to the government may contribute to the outward autonomy of constitutional courts from the government.⁷³ Public trust in the courts can be increased by the populists themselves through their media outputs, which may be even more effective through a media sympathetic to them.

Thus, the effectiveness of legitimation techniques is directly proportional to the level of credibility and subsequent authority of a particular court. This factor also affects the following technique as well as the fifth, extra-legal technique.

(3) The delegation technique. Our imaginary Prime Minister Populus, although he and his party possess the majority to pass laws, is reluctant to take some steps which he actually wanted to make. He fears both the disapproval in society, even among his supporters, those whom he considers to be ‘virtuous people’, and the reaction at the level of the European Union and the Council of Europe. He has therefore thought of shifting the burden to another authority, which will take the planned step while bearing any negative consequences. He will have his cake and eat it too.

I referred to this technique of abuse of the constitutional court as a delegative one. It is based on the principle of outsourcing – the political power passes unpopular decisions, which risk losing political points, to formally independent bodies.⁷⁴ The latter will try to justify such a decision with legal arguments. Populists may then criticise the judgment and accept it as a necessary evil, concurrently referring to the principles of separation of powers and judicial independence. Alternatively, if ‘their’ part of the people reacts positively, they may side with the court.

We can distinguish two subtypes of this technique: internal and external. The internal use is directed inwards – the reason for delegation is the potential loss of political points on the domestic scene and the respective delegated action has primarily domestic implications. Usually, populists will use it in order to repeal certain unwanted legislation, adopted by the previous government, by ‘corrupt elites’, as the constitutional court will declare such legislation unconstitutional.⁷⁵ This either achieves the populists’ objective in the matter, or the court judgment at least opens the door to the adoption of new legislation. But then it will no longer be a question of will, but of necessity – there is ‘nothing else left’ for the populists, they ‘really have to’ adopt the new, proper legislation if the previous one was unconstitutional.

An example of internal delegation we can observe in the decision of the Polish Constitutional Tribunal, which, on the motion of several PiS and the United Right MPs, struck down as unconstitutional one of the three exceptions allowing women to undergo an abortion – serious irreversible damage to the foetus.⁷⁶ The unpopularity of this outcome is evidenced by the fact that hundreds of thousands of people took to the streets of Polish cities in the following weeks to protest for women's rights.⁷⁷ The tightening of abortion policy was primarily the wish of PiS President Jarosław Kaczynski, who described the first wave of demonstrators as ‘dark forces that want to destroy Poland’.⁷⁸ However, the government, headed by Prime Minister Morawiecki, moderated its statements in the face of the growing protests and decided not to publish the judgment in the official gazette, even though the Constitution does not allow such an action.⁷⁹ As soon as the massive protests ceased, the government published the judgment, and it came into force in January 2021.⁸⁰ The Conservative Party thus succeeded in pushing through a tightening of abortion policy without having to undergo the legislative process.

The external model of delegation includes those actions where the government does not very fear the public reaction, as much as other states or supranational institutions of which it is a part, while the delegated action itself is also directed outwards. It may be an international political act that the government itself does not want to take and prefers to avail itself of the authority of a formally independent constitutional court. Such a move will look much more elegant if it comes from a judicial institution rather than the executive.

An example of external delegation is the judgment of the Polish Constitutional Tribunal, which found Articles 1, 4(3) and 19(1) of the Treaty on the European Union contrary to the Polish Constitution.⁸¹ According to the Constitutional Tribunal, the EU institutions can on the basis of these articles act beyond the competencies delegated to them by Poland, the Constitution has ceased to be Poland's supreme law with a priority of validity and application, and Poland cannot function as a sovereign and democratic state. For these three principal reasons, the Constitutional Tribunal held that EU law (and the judgments of the Court of Justice) will be binding in Poland only within the limits of the Polish Constitution and its interpretation by the Constitutional Tribunal.⁸² This review was initiated by Prime Minister Mateusz Morawiecki, whose government has long faced criticism from the EU for violating the rule of law.⁸³ This criticism was institutionalised in the form of the launch of the procedure under Article 7(1) TEU for the risk of violating the fundamental values of the EU as set out in Article 2 TEU (i.e. democracy, the rule of law or human rights), as well as in several verdicts of the Court of Justice stating the non-fulfilment of obligations under the founding treaties.⁸⁴ The ruling party thus needed trump cards to justify its transgressions on the European scene. It itself is reluctant to open conflict with the EU, as Poland grossly benefits from EU membership, both economically and politically, and can therefore be labelled as an ‘externally constrained regime’.⁸⁵

Given that the majority of Poles support their country's membership of the EU,⁸⁶ Prime Minister Morawiecki, following the release of the judgment on the supranational level, denied the notion that such a ruling constitutes a step towards so-called polexit (i. e. Poland leaving the EU). Nonetheless, he said that he would respect the decision and that ‘the national constitution must remain the supreme law in Poland’.⁸⁷ Minister of Justice Minister Ziobro, in a much harsher tone aimed at his domestic audience, described the ruling as ‘a very important verdict for the whole nation, facing the EU's efforts to treat Poland as a quasi-colonial state’.⁸⁸ This judgment, on the other hand, is considered by the vast majority of the expert community to be a factually incorrect ruling issued on political orders.⁸⁹

That said, the internal and external aspects of this technique can be mutually combined. It is possible, for instance, that populists will be afraid of external reaction, but the delegated action will be aimed inwards, and vice versa.

The limits of the delegation technique, like those of legitimation, lie in the public perception of the respective constitutional court and, in the case of external delegation, in its authority at the supranational level. The use of this technique is also limited by the procedural setting in a particular state. The Polish abortion case shows the advantages of the possibility of an abstract ex ante review at the suggestion of an executive, but the technique can also be used by populists in an abstract ex post review, as in the case of the aforementioned EU case law.

(4) The outright counter-opposition technique. The fourth technique is the most aggressive presented and often resembles the abuse of the judiciary by authoritarian and totalitarian regimes.⁹⁰ Simultaneously, it is also the most diverse technique – it includes several ways of use the constitutional court to directly and negatively impact the personal sphere of opposition representatives. Therefore I mention bellow only a few possible examples of this technique, the list is not intended to be exhaustive. This technique differs from the delegative technique since only the court has this power (and not the government or parliamentary majority), and this exclusive power is abused. Dixon and Landau classify such court’s activity as ‘strong abusive judicial review’ as opposed to the less intense ‘weak abusive judicial review’ under which would probably fall, for example, the first and second techniques (i.e. ‘governing, not to disturb’ and legitimisation).⁹¹

Let's take a look at our Popularia. The Populus’ government is facing an economic crisis that is drastically taking political points away from it. Furthermore, some independent media constantly confront Populus with scandals involving himself or his ministers, which also helps the opposition parties. Ahead of the forthcoming elections, the fight against opposition must be stepped up a notch, and the Constitutional Court will again help. In addition to the techniques described above, which of course will also still be very useful, Populus is coming up with ways to marginalise or even completely politically eliminate its opponents directly through the Constitutional Court. In Populus, as in other member states of the Council of Europe,⁹² the Constitutional Court can, on the motion of the government or the president, dissolve a political party that violates the constitution and laws or threatens the democratic rule of law, public order or morality. Hence, on Populus’ motion, the Constitutional Court can prevent an opposition party from participating in the upcoming elections, for example, because it is a liberal party supporting marriage for all, which, according to the interpretation of right-wing conservative populism, violates morality or other, genuine constitutional values.

The Constitutional Court will also act against opposition directly if it fails to provide protection for their individual rights in the constitutional complaint procedure. Although the state does not have the possibility of filing a constitutional complaint in Popularia to overturn the decisions of the lower courts, in private disputes between individual members of the government and their political opponents or independent journalists, where the opposition's freedom of expression will be at stake, the Constitutional Court can already contribute to the suppression of this freedom in a particular case and, moreover, bring about a chilling effect for all future cases.⁹³

If Populus still do not win the election, he can use the Constitutional Court to rule on electoral matters, whether to invalidate a particular vote, a voting procedure or even the election itself. A subsequent re-run of the election may help to reverse the initial unfavourable result for the populists.

Nevertheless, the use of this technique can significantly reduce the effectiveness of the previous techniques, which presuppose at least a certain degree of autonomy and credibility for the respective constitutional court. The use of outright anti-opposition techniques, particularly in relation to elections, also constitutes a direct attack on democracy as such and will usually entail overstepping, temporarily or permanently, the fine line between populist and authoritarian constitutionalism.⁹⁴

(5) The extra-legal technique. The last way how to abuse the constitutional court for own, populist purposes is closely linked to the legitimation technique. Unlike it, however, it takes place outside the court. Individual judges can support government action through their public appearances and, by contrast, criticise opposition positions. In doing so, they take advantage of their respected status and aura of independent legal expertise. Although it is not the role of the (constitutional) judges to comment on controversial political issues, the degree of restraint can and does vary even where constitutional courts are not subordinate to the ruling majority.⁹⁵

Therefore, in some controversial issues, Populus may ask one of the judges of the Constitutional Court to support, for instance, a bill criticised by opposition in the media as unconstitutional. In reality, this is also the case in Poland, where Julia Przyłębska, the aforementioned president of the Constitutional Tribunal, stated in a television interview in July 2017 that the bill of the controversial judicial reform does not threaten the separation of powers and meets the expectations of the whole society, while at the same time chastising opposition for presenting unjustified opinions of foreign observers about the violation of the rule of law in Poland.

Even though this technique is rather complementary to others, it can play its role in combating opposition views. The summary of all five techniques provides the following Table 1.

Table 1. Five techniques of the instrumental abuse of constitutional courts.

	The technique of the abuse the CC	The essence of the technique
1.	The ‘governing, do not disturb’ technique	The CC does not quash unconstitutional acts
2.	The legitimisation technique	Enhancing the legitimacy of acts through constitutional review
	– Passive	Dismissing opposition motions to repeal government acts and declare them constitutionally compliant
	– Active	Populists themselves initiate a constitutional review
3.	The delegation technique	Populists delegate unwanted actions to the CC
	– External	Delegation of domestic issues with an impact within the state
	– Internal	Delegation of actions directed beyond national borders with impact on the international scene
4.	The outright counter-opposition technique	Direct attacks on the opposition – its existence, speeches or electoral results
5.	The extra-legal technique	Use of the authority of judges for support in the media

The instrumental abuse of constitutional courts and its consequences

Although the five techniques of the instrumental abuse of constitutional courts were demonstrated on fictitious Popularia and were mostly supplemented by examples from Poland, this theoretical framework may be fully employed for analysis in all countries meeting the following four requirements. First, such a country must be ruled by populists (i. e. populists must gain a majority in parliament). Second, there must exist a concentrated model of constitutional review (i. e. the existence of one supreme judicial body with power to constitutional review). Third, such a constitutional court must be captured by populists (i. e. personally subordinated to populists), and, finally, such a country must not degenerate into authoritarianism, for which the populist regimes have a strong tendency.⁹⁶ If all these four conditions are met, this framework will be fully applicable. This, however, does not exclude cases where it will be applicable only partially, to some extent.

The techniques presented, especially when used together and over a long period of time, do constitute not only an abuse of legal constitutionalism but also a threat to democracy as such, even if we perceive it only in Schumpeter's procedural sense.⁹⁷ Indeed, the capture of the Constitutional Court opens the way to the suppression of fundamental ‘democratic’ rights such as the right to equal and free elections and the related freedom of expression or freedom of assembly – by whichever of these techniques is used.⁹⁸ In the techniques described, we find all three aspects that denote that ‘democracy dies’, as Steven Levitsky and Daniel Ziblatt write about in their popular book: (1) to capture the referees; (2) to sideline the key opposition players (both personnel and institutional); and (3) to rewrote the rules of the political game by tilting the playing field.⁹⁹ While the first aspect is a prerequisite of all techniques, the second and third can be done much more easily under the instrumental abuse of the constitutional court.

The instrumental abuse of the constitutional court may not even end when the populists actually lose the elections and governmental power. If the new, non-populist government does not want to employ court-packing methods, there is a threat that the constitutional court, still captured by the populists (currently in opposition), will thwart reforms on the pretext of their unconstitutionality. Then, the constitutional court will no longer serve as a populist tool ‘against opposition’, but as a populist tool ‘in opposition’ or ‘against the government’. In these circumstances, the constitutional court could also be abused by a minority in parliament.

In this context, it is necessary to distinguish between the instrumental abuse of the constitutional court as an element of populist constitutionalism and so-called ‘judicial populism’, which Mátyás Bencze describes as a way of court decision-making that seeks to please the majority opinion of the public.¹⁰⁰ However, judicial populism involves judges who are independent of the other branches of government. Their decisions are influenced by certain extra-legal influences, but not by political pressure from the executive.

In the long run, the abuse of the constitutional court as an instrument of the majority may also cause a decline in public trust in the constitutional court and the judiciary as a whole – as was the case in the communist and post-communist countries.¹⁰¹ And it may also entail a lower level of legislative quality. The constitutionality of laws will be disregarded neither by those who control the court nor by those who know that they will not be protected by it.¹⁰²

These were negative consequences, but what about positive ones? A positive may be a potential reconfiguration of the institutional framework that will be more resistant to populist attacks. As Arato and Cohen argue, the abuse of constitutionalism comes into play where there is ‘authoritarian potential’ in a liberal constitution.¹⁰³ Similarly, Smekal, Benák and Vyhnánek in their article provide reasons why a better institutional design of the Czech Constitutional Court has prevented it from being taken over by populists in the way that has happened in neighbouring countries with similar historical and cultural contexts.¹⁰⁴ The normative critiques of political or democratic constitutionalism and their calls for broader constitutional participation¹⁰⁵ are also worth taking into account when thinking about institutional reforms in new and consolidated democracies. The question is whether we need to let all the dimensions of populist constitutionalism manifest themselves in order to think in this way and to leave complacency with the current legal constitutionalism model.

Conclusion

One of the last phenomena of political reality is populist constitutionalism. It manifests itself in three dimensions: (1) populist constitutional-making; (2) populist quasi-constitutional law-making; and (3) populist constitutional interpretation. If a populist government does not possess a constitutional majority, we find in its actions only the second and third dimensions, which are inextricably linked to its control of the constitutional court. Therefore, the effective implementation of these dimensions requires the constitutional court, which is supposed to guard the constitution and has the power to annul acts of parliament and government.

In this article, I have focused on how populists have abused these institutions for their own purposes I have explained that if populists captured the constitutional court, its function would be turned completely upside down – rather than acting as a watchdog for political actors, they become a partner facilitating to eliminate of most such watchdogs. Constitutional courts thus perform a different role under populist constitutionalism than they do under legal constitutionalism. They serve the ruling power as a tool to fight the opposition.

I have unpacked this principal argument and, based on empirical knowledge and analytical literature on populist constitutionalism, I specifically define five possible techniques for how this tool can be used. I refer to them as techniques of the instrumental abuse of the constitutional courts. These are (1) the ‘governing, do not disturb’ technique, consisting in not quashing unconstitutional acts; (2) the legitimation technique, through which populists justify their actions; (3) the delegation technique, through which populists shift responsibility for potentially unpopular actions to the constitutional court; (4) the outright counter-opposition technique, through which populists can achieve the liquidation of their opponents; and (5) the extra-legal technique, involving the use of the authority of judges in the media. These techniques not only treat the institutions and narratives of legal constitutionalism selectively, contextually, and against their original purpose but also pose a threat to democracy itself.

The above conclusions represent the main contribution of this text. This theoretical framework thus provides an original systematic grasp of the current and lively topic of the rise of populism and the rule of law decay around the world. It seeks to move forward with the analytical view on this issue. Although the analysis stems from empirical examples mostly from Poland, the framework may be employed for analysis in all countries with a similar institutional setting where populists will take power.

Nevertheless, the conclusions are primarily theoretical, drawing on existing empirical knowledge and subsequent literature. The subject of further research could therefore be whether the techniques presented are in fact manifested in all countries where populists take power or whether some techniques are used more than others. The limits lie, of course, in the institutional (in)sameness of the systems of each country, which may not allow for some techniques or, on the contrary, create room for entirely new ones. Although in research on the phenomena of political realities, science will usually be a little behind the times, the insights also contained in this paper can become a starting point for thinking about setting up constitutional frameworks in such a way that particular techniques of abuse will not occur, or at least will be much more difficult to implement.

The article is not intended as a playbook for populists. Rather, it attempts to point out the dangers of taking control of the Constitutional Court, which may not be obvious at first glance and have not yet been thoroughly addressed in the existing literature. The work could also become a starting point for thinking about how to set up constitutional frameworks in such a way that particular abuses do not occur or are much more difficult to implement.

Disclosure statement

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

Additional information

Funding

This work was supported by Masaryk University (Specific research – support for student projects) [grant number MUNI/A/1439/2021].

Notes on contributors

Michal Kovalčík

Michal Kovalčík is a master's student at Faculty of Law, Masaryk University, Brno where he has already earned a bachelor's degree in political science. He works as a student research assistant at the Department of the Constitutional Law and Political Science and Judicial Studies Institute, Masaryk University. He also trained for a longterm internship at the Czech Constitutional Court in the chamber of Judge Kateřina Šimáčková, and from the autumn, he will intern at the Supreme Administrative Court in the chamber of Judge Michal Bobek. In his initial works, he has focused on the role of courts at the domestic as well as European level. This topic also determined the subject of his to-be diploma thesis, which will addresss the judicial dialogue between the Czech Constitutional Court and ordinary courts via the concrete constitutional review mechanism.

Notes

1 Aleksandra Gliszczyńska-Grabias and Wojciech Sadurski, ‘The Judgment That Wasn’t (But Which Nearly Brought Poland to a Standstill): “Judgment” of the Polish Constitutional Tribunal of 22 October 2020, K1/20’, European Constitutional Law Review 17, no. 1 (March 2021): 131, https://doi.org/10.1017/S1574019621000067.

2 By opposition I mean, in a broad sense, critics of populist government - from political opponents to civil society and the media to academics.

3 Mirosław Wyrzykowski and Michał Ziółkowski, ‘Illiberal Constitutionalism and the Judiciary’, in Routledge Handbook of Illiberalism (New York: Routledge, 2021); Pablo Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’, European Constitutional Law Review 15, no. 1 (March 2019): 48–72, https://doi.org/10.1017/S1574019619000026; Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy, 1st edition (Oxford, United Kingdom: Oxford University Press, 2021); Zdeněk Kühn, ‘The Judiciary in Illiberal States’, German Law Journal 22, no. 7 (October 2021): 1231–46, https://doi.org/10.1017/glj.2021.71; Hubert Smekal, Jaroslav Benák, and Ladislav Vyhnánek, ‘Through Selective Activism towards Greater Resilience: The Czech Constitutional Court’s Interventions into High Politics in the Age of Populism’, The International Journal of Human Rights 0, no. 0 (26 November 2021): 1–22, https://doi.org/10.1080/13642987.2021.2003337; András Sajó, Ruling by Cheating (Cambridge, United Kingdom ; New York, NY: Cambridge University Press, 2021).

4 Wojciech Sadurski, Poland’s Constitutional Breakdown, Oxford Comparative Constitutionalism (Oxford, New York: Oxford University Press, 2019).

5 Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’; Dixon and Landau, Abusive Constitutional Borrowing.

6 See e. g. Carlos de la Torre, ed., Routledge Handbook of Global Populism, 1st edition (London, New York: Routledge, 2018).

7 E.g. David Landau, ‘Personalism and the Trajectories of Populist Constitutions’, Annual Review of Law and Social Science 16 (2020): 293–309, https://doi.org/10.1146/annurev-lawsocsci-041420-113519; Sadurski, Poland’s Constitutional Breakdown, 20; Agnes Akkerman, Cas Mudde, and Andrej Zaslove, ‘How Populist Are the People? Measuring Populist Attitudes in Voters’, Comparative Political Studies 47, no. 9 (1 August 2014): 1326, https://doi.org/10.1177/0010414013512600; Kurt Weyland, ‘Clarifying a Contested Concept: Populism in the Study of Latin American Politics’, Comparative Politics 34, no. 1 (2001): 1–22.

8 See e.g. Cynthia Miller-Idriss, ‘The Global Dimensions of Populist Nationalism’, The International Spectator 54, no. 2 (3 April 2019): 18, https://doi.org/10.1080/03932729.2019.1592870; Vlastimil Havlík, ‘Technocratic Populism and Political Illiberalism in Central Europe’, Problems of Post-Communism 66, no. 6 (2 November 2019): 370, https://doi.org/10.1080/10758216.2019.1580590; David Fontana, ‘Unbundling Populism’, UCLA Law Review 65 (2018): 1487.

9 Cas Mudde, ‘The Populist Zeitgeist’, Government and Opposition 39, no. 4 (2004): 243, https://doi.org/10.1111/j.1477-7053.2004.00135.x.

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

11 See Petra Dobner and Martin Loughlin, eds., The Twilight of Constitutionalism? (Oxford: Oxford University Press, 2010), 55; N. W. Barber, The Principles of Constitutionalism (Oxford, United Kingdom: Oxford University Press, 2018), 19.

12 Gábor Halmai, ‘Populism, Authoritarianism and Constitutionalism’, German Law Journal 20, no. 3 (April 2019): 311, https://doi.org/10.1017/glj.2019.23; Ronald Dworkin, ‘Constitutionalism and Democracy’, European Journal of Philosophy 3, no. 1 (1995): 2, https://doi.org/10.1111/j.1468-0378.1995.tb00035.x; Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira, eds., The Oxford Handbook of Law and Politics, 1st edition (Oxford: Oxford University Press, 2010), 281.

13 Mark Tushnet, ‘Authoritarian Constitutionalism. Some Conceptual Issues.’, in Constitutions in Authoritarian Regimes, ed. Tom Ginsburg and Alberto Simpser (New York: Cambridge University Press, 2014), 36–49.

14 Gábor Halmai, ‘Is There Such Thing as ‘Populist Constitutionalism’? The Case of Hungary’, Fudan Journal of the Humanities and Social Sciences 11, no. 3 (1 September 2018): 329, https://doi.org/10.1007/s40647-018-0211-5.

15 See Tushnet, ‘Authoritarian Constitutionalism. Some Conceptual Issues’, 36–49; Paul Blokker, ‘Varieties of Populist Constitutionalism: The Transnational Dimension’, German Law Journal 20, no. 3 (April 2019): 334, https://doi.org/10.1017/glj.2019.19.

16 See Bojan Bugarič, ‘The Two Faces of Populism: Between Authoritarian and Democratic Populism’, German Law Journal 20, no. 3 (April 2019): 190, https://doi.org/10.1017/glj.2019.20; Paul Blokker, ‘Populist Constitutionalism’, in Routledge Handbook of Global Populism, ed. Carlos de la Torre, 1st edition (London, New York: Routledge, 2018), 125.

17 See for more detail Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007), https://doi.org/10.1017/CBO9780511490187; Jeremy Waldron, ‘Constitutionalism: A Skeptical View’, NYU School of Law, Public Law Research Paper No. 10-87, 1 May 2012; Paul Blokker, New Democracies in Crisis?, 1st edition (Routledge, 2015), 23–30.

18 See Cristobal Rovira Kaltwasser et al., eds., The Oxford Handbook of Populism, 1st edition (Oxford, United Kingdom ; New York: Oxford University Press, 2018); Torre, Routledge Handbook of Global Populism.

19 See Blokker, ‘Varieties of Populist Constitutionalism’.

20 Cf. Jan-Werner Müller, ‘Populism and Constitutionalism’, in The Oxford Handbook of Populism, ed. Cristobal Rovira Kaltwasser et al., 1st edition (Oxford, United Kingdom ; New York: Oxford University Press, 2018).

21 Dixon and Landau, Abusive Constitutional Borrowing.

22 Dixon and Landau, 36–7.

23 Sadurski, Poland’s Constitutional Breakdown, 253.

24 Tímea Drinóczi and Agnieszka Bień-Kacała, ‘Illiberal Constitutionalism: The Case of Hungary and Poland’, German Law Journal 20, no. 8 (December 2019): 1140–66, https://doi.org/10.1017/glj.2019.83.

25 See Maciej Bernatt and Michał Ziółkowski, ‘Statutory Anti-Constitutionalism’, Washington International Law Journal 28, no. 2 (1 April 2019): 487.

26 Dixon and Landau, Abusive Constitutional Borrowing, 184.

27 Wyrzykowski and Ziółkowski, ‘Illiberal Constitutionalism and the Judiciary’, 526.

28 Sadurski, Poland’s Constitutional Breakdown, 255.

29 Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe, 2nd ed. (Springer Netherlands, 2014), 8, https://doi.org/10.1007/978-94-017-8935-6.

30 Wyrzykowski and Ziółkowski, ‘Illiberal Constitutionalism and the Judiciary’, 518.

31 Cf. Kühn, ‘The Judiciary in Illiberal States’, 1243.

32 Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’, 68; see also Müller, ‘Populism and Constitutionalism’.

33 David Kosař, ‘The Least Accountable Branch’, International Journal of Constitutional Law 11, no. 1 (1 January 2013): 260, https://doi.org/10.1093/icon/mos056.

34 Kosař, 260.

35 David Kosař and Katarína Šipulová, ‘How to Fight Court-Packing’, Constitutional Studies 6, no. 1 (2020): 135.

36 For further details see Kosař and Šipulová, ‘How to Fight Court-Packing’.

37 Wyrzykowski and Ziółkowski, ‘Illiberal Constitutionalism and the Judiciary’, 528.

38 Dixon and Landau, Abusive Constitutional Borrowing, 92.

39 Cf. András Sajó and Renáta Uitz, The Constitution of Freedom: An Introduction to Legal Constitutionalism (Oxford: Oxford University Press, 2017), 128, https://doi.org/10.1093/oso/9780198732174.001.0001.

40 Barber, The Principles of Constitutionalism, 79–82.

41 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 (September 2019): 434, https://doi.org/10.1017/S1574019619000336.

42 Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’, 67.

43 Wyrzykowski and Ziółkowski, ‘Illiberal Constitutionalism and the Judiciary’, 519.

44 Smekal, Benák, and Vyhnánek, ‘Through Selective Activism towards Greater Resilience’, 3.

45 Jan Cienski, ‘The Duda in Poland’, POLITICO, 24 May 2015, https://www.politico.eu/article/upset-in-poland-2/.

46 Sadurski, Poland’s Constitutional Breakdown, 106–7.

47 Sadurski, 124.

48 See Laurent Pech, Patryk Wachowiec, and Dariusz Mazur, ‘Poland’s Rule of Law Breakdown: A Five-Year Assessment of EU’s (In)Action’, Hague Journal on the Rule of Law 13, no. 1 (April 2021): 1–43, https://doi.org/10.1007/s40803-021-00151-9.

49 Sadurski, Poland’s Constitutional Breakdown, 258.

50 Sadurski, 258.

51 Sadurski, 62–5.

52 Sadurski, 62–5.

53 Kosař and Šipulová, ‘How to Fight Court-Packing’, 142.

54 Sadurski, Poland’s Constitutional Breakdown, 69.

55 Andrew Arato and Jean L. Cohen, Populism and Civil Society: The Challenge to Constitutional Democracy (New York: Oxford University Press, 2022), 72.

56 Sadurski, Poland’s Constitutional Breakdown, 81.

57 Wyrzykowski and Ziółkowski, ‘Illiberal Constitutionalism and the Judiciary’, 519.

58 Kühn, ‘The Judiciary in Illiberal States’, 1244.

59 Inspiration for the name of this technique comes from the Czech documentary film 'Governing, Don’t Disturb!‘ (2007) directed by Tomáš Kudrna.

60 The judgment of the Polish Constitutional Tribunal of 9 December 2015, K 35/15, and the judgment of 9 March 2016, K 47/15.

61 Sadurski, Poland’s Constitutional Breakdown, 71.

62 Sadurski, 73–4.

63 See Smekal, Benák, and Vyhnánek, ‘Through Selective Activism towards Greater Resilience’, 3.

64 Martin M. Shapiro, Courts: A Comparative and Political Analysis, Paperback ed (Chicago: University of Chicago Press, 1986), 27.

65 Dixon and Landau, Abusive Constitutional Borrowing, 82.

66 Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’, 68.

67 Tamir Moustafa, ‘Law and Courts in Authoritarian Regimes’, Annual Review of Law and Social Science 10, no. 1 (3 November 2014): 286, https://doi.org/10.1146/annurev-lawsocsci-110413-030532.

68 See e. g. statements of the Chief Justice of the Poland’s Constitutional Tribunal, Julia Przyłębska. Sadurski, Poland’s Constitutional Breakdown, 82.

69 Sadurski, 151.

70 Sadurski, 152–3.

71 Dixon and Landau, Abusive Constitutional Borrowing, 85.

72 Dixon and Landau, 85.

73 Dixon and Landau, 92.

74 Wyrzykowski and Ziółkowski, ‘Illiberal Constitutionalism and the Judiciary’, 517.

75 Cf. Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’, 69.

76 Gliszczyńska-Grabias and Sadurski, ‘The Judgment That Wasn’t (But Which Nearly Brought Poland to a Standstill)’, 131.

77 Jan Cienski, ‘Protests Shake Poland as Government Looks for a Retreat on Abortion Ruling’, POLITICO, 30 October 2020, https://www.politico.eu/article/poland-abortion-protests-shake-government-retreat/.

78 Magdalena Miecznicka, ‘Polish Protesters Are Aghast at Abortion Ban’s Moral Hypocrisy’, 3 November 2020, https://www.ft.com/content/1fc1b1b1-8b58-4bba-8f98-69317f9b98df.

79 Gliszczyńska-Grabias and Sadurski, ‘The Judgment That Wasn’t (But Which Nearly Brought Poland to a Standstill)’, 135.

80 Gliszczyńska-Grabias and Sadurski, 138.

81 The judgment of the Polish Constitutional Tribunal of 7 October 2021, K 3/21.

82 See Stanislav Biernat and Ewa Letowska, ‘This Was Not Just Another Ultra Vires Judgment!’, Verfassungsblog (blog), 2021, https://verfassungsblog.de/this-was-not-just-another-ultra-vires-judgment/.

83 Jakub Jaraczewski, ‘Gazing into the Abyss’, Verfassungsblog (blog), 2021, https://verfassungsblog.de/gazing-into-the-abyss/.

84 Pech, Wachowiec, and Mazur, ‘Poland’s Rule of Law Breakdown’, 2.

85 See András Bozóki and Dániel Hegedűs, ‘An Externally Constrained Hybrid Regime: Hungary in the European Union’, Democratization 25, no. 7 (3 October 2018): 1182, https://doi.org/10.1080/13510347.2018.1455664.

86 Kublik, ‘Kto się boi polexitu. Sondaż Ipsos dla OKO.press i ‘Wyborczej’’, Gazeta Wyborcza, 1 October 2021, https://wyborcza.pl/7,75398,27647569,ipsos-dla-oko-press-i-wyborczej.html.

87 Maia de la Baume and David M. Herszenhorn, ‘Ursula von Der Leyen, Mateusz Morawiecki Clash in European Parliament’, POLITICO, 19 October 2021, https://www.politico.eu/article/ursula-von-der-leyen-mateusz-morawiecki-clash-rule-of-law-european-parliament/.

88 PAP, ‘Justice Minister Praises Polish Constitution Supremacy Ruling’, The First News, 8 October 2021, https://www.thefirstnews.com/article/justice-minister-praises-polish-constitution-supremacy-ruling-25261.

89 Jaraczewski, ‘Gazing into the Abyss’; Biernat and Letowska, ‘This Was Not Just Another Ultra Vires Judgment!’; Paul Craig, ‘Op-Ed: ‘The Rule of Law, Breach and Consequence’’, EU Law Live, 21 October 2021, https://eulawlive.com/op-ed-the-rule-of-law-breach-and-consequence-by-paul-craig/; Adam Łazowski and Michal Ziółkowski, ‘Knocking on Polexit’s Door?’, CEPS (blog), 21 October 2021, https://www.ceps.eu/knocking-on-polexits-door/; Herwig C. H. Hofmann, ‘Sealed, Stamped and Delivered’, Verfassungsblog (blog), 2021, https://verfassungsblog.de/sealed-stamped-and-delivered/; Rule of Law, ‘25 Retired Judges of the Constitutional Tribunal Appeal to PM Morawiecki to Withdraw His Motion in K 3/21 Case’, Rule of Law, 2021, https://ruleoflaw.pl/25-retired-judges-morawiecki-k-3-21/.

90 See e. g. Zdeněk Kühn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation?, Law in Eastern Europe, v. 61 (Leiden; Boston: Martinus Nijhoff Publishers, 2011), 36–62.

91 Dixon and Landau, Abusive Constitutional Borrowing, 94.

92 Venice Commission, ‘Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures’ (Venice: European Commission for Democracy through Law, 10 January 2000), 20.

93 See Judith Townend, ‘Freedom of Expression and the Chilling Effect’, in The Routledge Companion to Media and Human Rights (Routledge, 2017).

94 See David Landau, ‘The Myth of the Illiberal Democratic Constitution’, in Routledge Handbook of Illiberalism (New York: Routledge, 2021), 434.

95 See e. g. statements of the Chief Justice of the Czech Constitutional Court about the personal history of the Czech Prime Minister ČTK, ‘Rychetský: Nečekal jsem, že můžeme mít premiérem takovou osobu. Uzavření hranic bylo protiústavní’, iROZHLAS, 2020, https://www.irozhlas.cz/zpravy-domov/pavel-rychetsky-babis-nouzovy-stav-koronavirus_2011301008_pj.

96 Landau, ‘The Myth of the Illiberal Democratic Constitution’, 434.

97 Joseph A. Schumpeter, Capitalism, Socialism, and Democracy, 3rd edition (New York: Harper Perennial Modern Classics, 1950), 269.

98 See Dixon and Landau, Abusive Constitutional Borrowing; Sadurski, Poland’s Constitutional Breakdown, 262.

99 Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown, 2018), 177.

100 Mátyás Bencze, ‘Judicial Populism and the Weberian Judge—The Strength of Judicial Resistance Against Governmental Influence in Hungary’, German Law Journal 22, no. 7 (October 2021): 1294, https://doi.org/10.1017/glj.2021.67.

101 Kühn, ‘The Judiciary in Illiberal States’, 1241.

102 Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’, 70.

103 Arato and Cohen, Populism and Civil Society, 180.

104 Smekal, Benák, and Vyhnánek, ‘Through Selective Activism towards Greater Resilience’.

105 See for more detail Bellamy, Political Constitutionalism; Waldron, ‘Constitutionalism’; Blokker, New Democracies in Crisis?, 23–30.