Courts and Politics

Abusive judicial review entails incidents where courts use judicial review powers to overstep their mandate in a move against democracy. I propose a new use for the term associated with the role of political officials that activate courts rather than judicial decision-making itself. Officials with legal standing make use of this power as a position-taking endeavor both (i) to gain public support, and, (ii) to move public opinion against the court, affecting its perceived legitimacy in an attempt to weaken democratic institutions. These officials do not act upon any legitimate expectation of qualified constitutional deliberations, borrowing a traditional device consolidated in constitutional democracies to thwart democratic institutions and cause political instability. I address this form of borrowing as abusive judicial review upside down, illustrating it with the case of constitutional claims made by Bolsonaro's government before the Brazilian Supreme Court during the COVID-19 crisis.

In majority of today Euro-American states there exists an institution (in many examples a constitutional court) with jurisdiction over at least some acts of a parliament, empowered to derogate these acts or their parts (as unconstitutional). There are opinions today that those institutions are going or turning to be “political“, resembling the parliamentary politics‘ discourse. I want to, firstly, justify this opinion. Secondly, I want to argue, that the procedure of vacancies‘ filling in the institutions shall be democratised and made transparently political. Moreover, that the census for candidates (which today in most cases are strictly legal abilities) shall be widened. I want to ground my opinion on epistemological inquiry concerning the difference between beliefs, which we ordained by our own reflection, and other, to which we were introduced from external source (even with proper justification) - the inquiry I find as one of the most important arguments for democracy as such.

The problem of enforcement of constitutional court decisions is not particularly recognized in the doctrine of constitutional law. Usually, the necessity of executing the decisions of constitutional courts is emphasized and their effects are analyzed. However, less attention is paid to the issues of execution powers of constitutional courts. Moreover, they are not always regulated by law. They may also raise doubts in the light of the concept that constitutional courts are devoid of a sword and shield. Indeed, the issue has raised doubts in the wake of Spain's 2015 constitutional court reform significantly increasing its execution powers. This raises the question of the validity and permissible scope of the execution powers of constitutional courts? Does this kind of power make the court stronger? Do such powers lead to the strengthening of its position and finally, is this the right direction for the development of constitutional judiciary?

Recently, there has been a renewed focus on the co-optation of constitutional or supreme courts by up-and-coming authoritarians (Bugaric and Ginsburg 2016 - Sadurski 2018). A constitutional court should have the last word on matters of legal and constitutional interpretation and is thus both a bulwark against such authoritarian transition and a valuable target for would-be autocrats. In such situations, the ability of the court to survive and prevent democratic backsliding is vital, but they are hampered by a dependence on enforcement by the other branches. Constitutional courts must therefore develop strategies for moments of institutional and democratic uncertainty, such as judicial deferral (Issacharoff and Dixon 2016), while shoring up their legitimacy with other political actors and the people themselves. Understanding the strategies available to a constitutional court hoping to intervene and protect democracy is crucial in predicting a state's ability to survive autocratisation.

The increasing power of court presidents, particularly in states with less institutionalized judiciaries, has been documented all over the world. We know that judges hold significant competences in judicial selections, careers, and disciplining of judges. They dominate court administration, oftentimes being equipped with strong informal powers that can impact the results of judicial decision-making. But court presidents execute many other roles. Compared to rank and file judges, they are no ivory towers. They participate on the legislative process, negotiate with executive bodies, they are publicly active, comment on political development, publish in media or hold academic positions. This article steps into the field with a new typology of court presidents‘ roles in the separation of powers. Using comparative examples, it discusses how entrenchment of informal powers distorts position of court presidents in separation of powers and shifts the understanding of judicial independence.