Currently, the most widespread approach to the constitutional review of legislation in European countries is the Kelsenian model of centralized review. In the US system of diffuse review, every level of the court system can assess the constitutionality of legislation. In contrast, in the Kelsenian model, only one institution in the country can declare the unconstitutionality of legislation passed by the Parliament: the constitutional court.
Although the first constitutional court was created in Austria in 1920, these institutions did not begin to disseminate across the European continent until after the Second World War. Generally, constitutional courts were tasked with protecting the constitution, defending fundamental rights, and arbitrating between levels and organs of government. Constitutional courts are thus powerful actors as they have both judicial and political sway. Constitutional judges are usually lawyers of a solid reputation often appointed by the national Parliament, and sometimes also by the executive or judicial actors. This further reflects the dual judicial and political nature of the courts.
In theory, this procedure of appointing constitutional judges combines both technocratic and democratic forms of legitimacy; democratic legitimacy is achieved through the parliamentary and political appointment of constitutional judges, while technocratic legitimacy is achieved through the appointment of reputed lawyers. However, in my research I have observed a tension between this form of appointment and the capacity of constitutional courts to maintain a modicum of sociological legitimacy. This is the case because the political procedure of appointing constitutional judges opens these institutions to delegitimizing criticisms, contributes to a lower perception of independence and fairness of the judiciary as a whole, and facilitates institutional capture by illiberal actors.
On the first point, in my research, I observed that political actors use the political nature of appointing constitutional judges to attack constitutional courts when they dislike their decisions. In my work about one salient case of the Spanish Constitutional Court, I showed how political actors resorted to negatively framing the constitutional ruling by suggesting that the institution was politically biased or even controlled by rival political actors. These criticisms are facilitated by the parliamentary appointment of constitutional judges, which is exploited by litigants and politicians regardless of the actual autonomy of constitutional judges or the fairness and constitutionality of the concrete ruling at stake.
Secondly, there is the issue of how the political appointment of constitutional judges affects citizens’ perceptions of the judiciary as a whole. In the research that Dr. Rosa Navarrete and I recently published, we observed that citizens in European countries with constitutional courts had a lower perception of fairness and independence of their court system as a whole, even if this effect tended to lessen when democracies became older and more consolidated. Our theory is that this result has to do with the very visible and political nature of constitutional courts. It is true that constitutional courts are not the only judicial institutions whose members are politically appointed; the US Supreme Court is the best example of this. But it is precisely because constitutional courts are so political—they can declare the unconstitutionality of legislation in abstracto at the request of political actors—that keeping the appointment of judges in the hands of politicians has downsides that should be considered. The image of a court composed of politically appointed judges ruling on political issues at the request of politicians strongly contrasts with the ideal of the independent, apolitical judge that applies the law to cases based only on legal considerations. Further, the current mechanism of appointing constitutional judges may undermine citizens’ image of the court system as a whole, as the public often fails to recognize that constitutional courts are often not even part of the judicial branch.
The final problem, which is by far the most serious, concerns the takeover of constitutional courts by illiberal actors in countries such as Hungary and Poland. There is an abundant body of literature that uncovers the process of democratic backsliding in these countries. In many of these cases, executives seeking to get rid of constitutional constraints have captured constitutional courts. To do so, they have employed a wide range of strategies, often of dubious legality. One of those strategies is the exploitation of judicial appointments. When illiberal governments have sufficient control over the Parliament, they appoint like-minded or loyal constitutional judges to their constitutional court. This has rendered these institutions unable or unwilling to resist the authoritarian tendencies of these governments. Constitutional courts were often created in Europe after authoritarian experiences with the aim of preserving political freedom. Their inability to deter democratic backsliding in countries where these constitutional courts have been implemented deserves a serious reflection about improving the institutional design of these organs to make them more resilient.
As showed throughout this article, the political and parliamentarian forms of appointment of constitutional judges have proven problematic in many European countries, albeit for different reasons. The original aim behind the implementation of constitutional courts—the protection of the constitution, fundamental rights, and democracy—is a laudable one. However, for constitutional courts to perform their function better, it might be necessary to re-think how these institutions are designed. More specifically, it is time to consider ways to depoliticize these institutions. Moving away from political procedures of appointment, at least for some of the constitutional judges, might be a good starting point; some European constitutional courts already do it. That would reinforce the technocratic legitimacy of these courts, based on the idea that constitutional judges are legal experts making decisions essentially on constitutional and juridical grounds. It would also reinforce the image of constitutional judges as neutral, impartial applicants of the constitution. Furthermore, if implemented in the right way, this approach might help to keep constitutional courts away from the corrupt hands of illiberal politicians, who, in many countries, seek to recycle these institutions into a functional aspect of their authoritarian mode of governance.
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Dr. Pablo Castillo-Ortiz holds a PhD in Law and Political Science and is currently a lecturer in law at the University of Sheffield (UK). His research specialism is in European constitutional politics, with a focus in institutions such as constitutional courts