Constitutional Courts in turbulent times

ABSTRACT

Judicial and political power are inextricably linked, but at this point in time that link seems more important, more pervasive, and more fragile than ever before. Courts are now under stress in many, even consolidated, democratic countries, becoming one of the most stimulating topics for understanding European politics. Indeed, bringing Courts back to the centre of political analysis is a privileged perspective for understanding how and why democracies change. By highlighting the characteristics of the complex political context of conflicting actors, institutions and political processes, this special issue of European Politics and Society reveals the different dynamics and patterns of the role of Courts in contemporary European politics. This paper presents the phenomenon of ‘Courts under stress’ and the related research questions. In addition, it introduces the articles that make up this special issue, which are indicative of the maturation of Courts as a crucial topic in European political science. Indeed, each article emphasizes different aspects of their role, bringing out new perspectives and complementary theoretical approaches and methodologies, thereby advancing comparative studies of judicial behaviour and constitutional jurisprudence.

KEYWORDS:

• Courts
• judicial review
• Europe
• democracy
• judicialization
• politicisation

1. The Courts at a turning point

Judicial and political power are inextricably linked, but at the moment that link seems more important, more pervasive, and more fragile than ever. Courts are now under stress in many, even consolidated, democratic countries (Dixon, 2023; Ginsburg & Huq, 2020). While the transition from authoritarian rule to democracy was long expected on a global scale, today ‘a loss of democratic quality, a decline into a hybrid regime, or a collapse into a full-blown dictatorship’ have become widespread phenomena (Erdmann & Kneuer, 2011, p. 9; Haggard & Kaufman, 2021). In a relevant range of countries, courts have been exposed to unpredictable logics and grammars of power as monocratic governments have increasingly sought to reform these pillars of democracy (Musella, 2022). Courts can be neutralised, their jurisprudence subjected to political control, judges co-opted or, in other cases, their decisions ignored or even annulled (Holgado & Urribarri, 2023; Kosař & Šipulová, 2023). The decline of the rule of law then highlights serious risks of democratic breakdown and brings the spectre of autocracy to the surface. As Landau and Dixon point out (2020, p. 1315),

a key feature of recent attacks on democracy is their legalistic tinge: rather than using extra-legal mechanisms such as military coups, the new authoritarians rely heavily on formal and informal constitutional change, as well as ordinary legal mechanisms, to reshape the constitutional order in ways that rig the electoral game in their favour.

From this perspective, the United States has recently shown the world how dangerous an extremely strong and partisan judiciary can be. American democracy has been threatened by Donald Trump’s rise to power, which has seriously compromised American institutions, starting with the judicial system (Campbell, 2022, pp. 104–132; Sunstein, 2018). While Trump’s successful nomination of three conservative Supreme Court justices, who have subsequently issued rulings advancing conservative positions in contentious policy areas, is the best-known impact of executive power on the judiciary in established democracies, the pressure(s) on the courts has spread across countries.

Constitutional Courts are also under stress in several European democracies (Landfried, 2019; Belov, 2021). On the one hand, what is reminiscent of American politics is the way in which both liberal and conservative leaders have adopted an adversarial attitude towards the judiciary. As a result, attempts to reduce or anaesthetise the political significance of the courts have led to strategies of delegitimization, often based on the idea/populist rhetoric that unelected bodies cannot control the will of the ruling majority legitimised by popular vote (Blokker, 2023; Castellà Andreu & Simonelli, 2022). At other times, the capture of Courts has been identified as an essential element of the rise – and stabilisation – of executive power, with monocratic leaders using their powers to weaken liberal democratic orders and reduce judicial autonomy (Lührmann & Lindberg, 2019; Llanos & Tibi Weber, 2022). When courts emerge as explicit targets of political forces seeking to undermine democratic institutions, the clash between judicial and political power intensifies. As guardrails that prevent democratic systems from falling out of the democratic genus, courts are tasked with keeping democracies on track, ‘maintaining a well-functioning judicial system and contributing to predictable “rules of the game”’ (Bravo-Hurtado & van Rhee, 2021, p. 4; Staton et al., 2022).

On the other hand, while Courts are now expected to outline new strategies to resist democratic erosion, they are increasingly subject also to another cause of stress, which has made them increasingly visible and recognisable. Over the last few decades, the global expansion of the role of the Courts has become the standard response of, or to, dysfunctional democracies. While the Courts have long been seen as the neutral guardians of the national Constitutions and bodies presumed to be above party politics, the rise of the Courts at the heart of the political scene testified to the shift in power resources and autonomy within contemporary real-world politics (Guarnieri & Pederzoli, 2002; Kapiszewski et al., 2013; Tate & Vallinder, 1995; Hirschl, forthcoming). In an era marked by political instability, increased electoral volatility, distrust of politicians, and political polarisation, the judicialization of politics came at the expense of the executive and legislative majorities, whose scope of action has been restricted by judges. Courts now occupy a privileged place in policymaking, intervening ‘in legislative processes, establishing limits on law-making behaviour, reconfiguring policy-making environments, even drafting the precise term of legislation’ (Florczak-Wątor, 2020; Stone Sweet, 2000, p. 1). They have become the main guarantors of the correct functioning of political activities and have developed such capacities to the point of monitoring the conduct of candidates and elected officials and even the rules for their election, ruling the void in times of political instability (Ferejohn, 2002; Musella & Rullo, 2021). In this new context, the costs of such a new role in governance cannot be overlooked. Even if it might lead to a better level of protection of citizens’ rights, it would raise important questions about their legitimacy, especially if they are called upon to rule on sensitive and/or polarising issues that have long been debated – and resolved – in parliamentary chambers. As Sartori (1987, p. 326) already anticipated, ‘if judges begin to become more and more “judge-legislators” in the manner of “politician-legislators”, the “republic of deputies” will find an equally dismembering antagonist in the “republic of judges”’. Not to mention how judges in different periods of democracies have acted as defenders of democratic progress, even to the point of attacking the political class: this behaviour has very often been led to focusing on specific leaders, as in the case of Silvio Berlusconi.

The courts are at a turning point. It is up to them to limit the abuse of government power and/or to confront political inefficiency. While the pace of these phenomena is influenced by the characteristics of different national contexts, this direction suggests an ongoing restructuring of the foundations of political regimes as they evolve and adapt to an unstable political environment. The political consequences of these developments will shape the fate of European politics and society, requiring efforts to understand and navigate the complexities of the roles and relationships of political and judicial powers within the new political landscape.

2. The plan of the special issue

Returning courts to the centre of comparative political analysis provides a privileged perspective for understanding how and why democracies have changed. As Shapiro (2019, p. 35) has observed, ‘the inquiry into successful judicial review ultimately becomes an inquiry into successful democracy’. In recent years, the increasing political salience of judicial institutions has altered the boundaries between judicial and political activity, making it one of the most crucial topics for understanding contemporary European politics.

This special issue begins with a careful and in-depth discussion of elements related to the characteristics of the determinants of political systems, which is a fundamental – though often neglected – issue in comparative research in this area. Indeed, courts are first and foremost political institutions and their jurisprudence is an integral part of the larger political context (Hirschl, 2008). Such a focus draws attention to the area where executive and legislative institutions and judicial power intersect in the practice of law-making, as well as to the evolving structure and function of judicial institutions and their interpreters (Cappelletti, 1981; Shapiro & Stone Sweet, 1994). Dispelling the myth that judges are simply la bouche de la loi, this perspective becomes even more salient in today’s fragmented and polarised political environment, where the durability and strength of the courts are increasingly called into question, raising a number of open questions. How does this new centrality of the courts in contemporary European politics come about, what are its causes, and how can it be disentangled? What are the specific conditions that, over time, have strengthened the role of courts vis-à-vis the executive and the legislature? Can the weaknesses of the traditional representative actors – or not – sustain the greater power of the courts? Alternatively, how does the rise of an autocratic leader affect the autonomy and independence of the courts? What are the consequences for democracy as power increasingly shifts from the political bargaining table to the courts?

With this special issue of European Politics and Society, we seek to answer these research questions by focusing on processes, stages, instruments, and conditions that are useful for understanding the role of constitutional courts in the political arena. The aim is to explore through an empirically-based approach the nature – and sources – of the phenomenon of ‘courts under stress’. The articles that make up this issue of European Politics and Society therefore reveal the different patterns of the role of the courts by identifying the characteristics of the complex political contexts of conflicting actors, institutions, and political processes. Each article emphasises different aspects of these dynamics, contributing to a multifaceted effort to advance comparative studies of judicial behaviour and constitutional jurisprudence.

While for a long time they have attracted little or no interest, the wide range of methodologies and topics covered by the articles is the first indication of the maturation of the courts as a crucial topic in European political science. In this vein, Dyevre’s article presents ‘a look back and a look ahead on EU judicial behaviour’, highlighting recent advances in theory, data and methods related to the European Court of Human Rights and the EU Court of Justice. An overview of EU judicial studies – and their shortcomings – is outlined. The article evaluates the main theoretical debates in the literature on EU judicial decision-making, as well as the main methodological tools that have been developed over the last thirty years. In particular, it shows how the combination of original theoretical and quantitative methodological tools can open up new avenues for studies in this field, even beyond Europe.

The following series of articles examines how constitutional courts have come under pressure from the inefficiency and fragmentation of the governmental system, and looks at the causes and consequences that have led them to play a very central role in policy-making. In some southern European countries, such as Italy and Spain, this trend represents the culmination of decades of change. As political actors have entered periods of great instability, the expansion of the role of their respective constitutional courts (i.e. Corte costituzionale and Tribunal Constitutional) in policy-making has become even more pronounced, leading to criticism that the courts are not adequately equipped to play this new role.

The article by Musella and Rullo examines the rise of the Italian Constitutional Court to the centre of the political scene. In line with other European democracies, the Italian Constitutional Court, which in Italy during the so-called First Republic (1948–1993) was considered the ‘weaker branch’ in the liberal trilogy of powers, has recently become increasingly activist. The authors observe how the Court has taken on issues traditionally reserved for elected politicians, and how this process is linked to the crises of party politics and the high degree of political fragmentation after the 1990s. The paper then examines the convergence of a series of factors – political, institutional, communicative – that led the Constitutional Court to ‘reinvent’ its role in a context of political inefficiency. Focusing on the Court’s intervention in contentious policy areas such as the end-of-life, the authors paint a picture in which judicialization has become a now permanent feature of Italian politics.

Similar transformations have taken place in Spain. From an institutionalist perspective, Hardidenguy’s article provides a detailed analysis of the judicialization of Spanish politics. By disentangling this process from the attributions that have long anchored it to transformations in inter-institutional relations, the article examines the complex web of changes taking place in the polarised Spanish political system. It then examines the main mechanisms of judicial participation in political decision-making and their consequences, highlighting how they have become even more delicate as this institution has gradually lost public support and legitimacy. As argued, the Tribunal Constitucional is now largely seen as a politicised institution serving the interests of conservative political forces, so that the politicisation of the Court has grown in parallel with the judicialization of Spanish politics, to the point of undermining legitimacy and trust in institutions.

Judicialization is also shaped by the behaviour of judges, which changes policy-making. After years of neglect by European scholars of judicial politics, the voting patterns and individual judicial behaviour of constitutional judges have begun to be seriously studied. In this vein, Glavina analyses the decision-making behaviour of the judges of the Croatian Constitutional Court and the emergence of dissenting coalition opinions. Emphasising the issue of judicial ideology and polarisation influencing judges’ decisions, the author helps us to understand the impact of constitutional judges on legislative-judicial relations.

Other articles in this special issue express suspicion about the direction of Central and Eastern European democracies and present original examinations of different aspects of courts and constitutional politics in the current democratic backsliding. Steuer’s article provides empirical support for emphasising the role of ideas in determining how political institutions perceive themselves and their place in the political system. Using the case of the Slovakian and Hungarian constitutional courts, both formally powerful and operating in regimes with past or ongoing illiberal and even semi-authoritarian traits, the paper examines the self-perception of constitutional judges with regard to their prerogatives, their authority, and their conception of democracy. Focusing on the separation of powers as a key aspect of democratic regimes, the paper then reveals the courts’ limited ability to resist the ‘majoritarian temptation’ of autocratic actors. This is particularly true in Hungary, where the rise of Orban’s leadership has severely weakened the Hungarian Constitutional Court in its protection of constitutional rights. Changes in the Court’s role and prerogatives have revealed damaging mutations that strike at the heart of constitutionalism. Since the ballot-box revolution of 2010, the new ‘Fundamental Law’ of 2012 has been further amended to the point that in 2013 all decisions of the Constitutional Court taken before the adoption of the new constitution were declared retroactively invalid. The recent developments of the Hungarian Constitutional Court and its interaction with a changed political environment are also the focus of Erdős and Tanács-Mandák’s article. Focusing on the Covid-19 pandemic, the authors examine the Hungarian Constitutional Court’s practice regarding the restriction of fundamental rights during the state of emergency (2020–2023). The article assesses one of the most criticised issues on how the Hungarian government has handled the pandemic, and explores how the Court has ensured the procedural integrity of emergency measures, thus highlighting the Court’s crucial role in times of emergency, while inspiring comparative avenues for further research in this area.

Developments in Central and Eastern Europe have much in common with threats to democratic order beyond Europe’s borders. In this sense, the Brazilian case shows that the emerging role of the courts is a common feature in different political contexts during the rise of autocratic leaders. As Bogea shows in his article, Bolsonaro’s actions have worked to weaken the independence and authority of the judiciary in a number of ways, challenging its personnel, scope and prerogatives. Nevertheless, the Supremo Tribunal Federal has tried to resist its marginalisation. In particular, the Chief Justice has been able to create a network of relationships that has increased the Court’s ability to limit the actions of the executive branch. By examining the conflicts that have arisen between different institutional actors in Brazil, the article provides lessons for European countries on how to defend judicial independence.

In sum, this special issue of European Politics and Society breaks new ground in the rapidly developing literature on law and politics by helping to identify patterns of pressure on constitutional courts and their impact on judicial behaviour. It also extends the comparative study of judicial politics by recognising the need for more empirical evidence and systematic data on the role of courts in contemporary politics. Shedding light on ‘constitutional courts under stress’ will be crucial to understanding the present and future of contemporary political regimes.

The long-term health of liberal democracies begins – and ends – with the effective balance between gubernaculum and jurisdictio.

Acknowledgements

The research leading to these results was realised within the framework of the Research Project of National Interest (PRIN) 2020–2023, ‘Monocratic Government. The Impact of Personalisation on Contemporary Political Regimes’. Principal Investigator: Professor Fortunato Musella.

Disclosure statement

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