In this article, the non‐unanimous decisions of the Portuguese and Spanish Constitutional Tribunals for the periods 1989–2009 and 2000–2009 are analysed. It is shown that judicial dissent can be predicted moderately well on the basis of judicial ideal points along a single dimension. This dimension is equivalent to the left–right cleavage in both Portugal and Spain. The characteristics of the recovered dimension are demonstrated by analysing both the properties of the cases and the properties of the justices who decided them.

This paper examines the contribution of German subnational constitutional courts to the judicialization of politics in the German states, known as Länder. This research goal entails three dimensions. First, I have to define and measure judicialization. To accomplish this task, I use an index recently developed by an international group of scholars of comparative politics. Second, based on major theoretical approaches, I identify possible causes that might give reasons for judicialization, namely institutional preconditions and preferences of justices. In a third step, I use a linear regression in order to test the theory empirically and find links between causes and effects of judicial decision-making in subnational constitutional courts. The findings confirm institutionalist approaches that contribute to explaining decision-making in German subnational constitutional courts.

Constitutional courts play an increasing role in policymaking and the concepts of comparative politics. Traditionally, research has focused on the Judicialization hypothesis for European courts. This article argues that there is a major research gap regarding justices’ preferences, intra- and inter-institutional rules and that it is necessary to move beyond the Judicialization hypothesis to integrate courts in concepts of comparative politics. It outlines four theoretical and methodological challenges for future research on constitutional courts.

Theoretical literature suggests at least three ways in which constitutional courts build social trust: democratic elements in the appointment of judges, technocratic qualities of the judges, and the impact of outcomes. This article contributes with empirical evidence to this theoretical debate. To do so, the article uses the case of Spain in the aftermath of the important ruling of the Constitutional Court on the Statute of Autonomy of Catalonia. The findings of the research point at technocratic elements such as the perception of judicial independence being very relevant to explain trust in the court, unlike democratic elements such as the appointment of constitutional judges by elected politicians. Overall, the evidence presented by the article backs the general idea that de-politicization and increased technocratic qualities of constitutional courts would help them gain social trust.

This Article is based on the author’s farewell speech at the Federal Constitutional Court on May 26, 2023.1

Introducing the Special Issue on “Judging under Pressure,” this Article sets out three interlinked challenges facing constitutional courts, broadly understood: persisting inequalities, the climate crisis, and rising autocratization. The Articles in this Special Issue identify, analyze, and prescribe a set of judicial responses and strategies when judging under pressure. Some reimagine and recalibrate the role of judges, while others respond with doctrinal and theoretical innovation; yet, throughout, there is a recognition of judicial constraints and institutional fragility.

The interaction between international law and constitutional law has been increasingly recognized as salient to understanding the functioning of both and hence as worthy of academic attention. This Introduction to a special issue on how a selection of five Asian courts engage with international law when adjudicating constitutional cases explains the significance of studying such judicial behaviours, outlines the conceptual framework to be used in this regard, and identifies and reflects on some of the key findings from the case studies, including by highlighting domestic constitutional factors that help account for observed divergencies in judicial approach. This contribution also points to the value of examining courts’ attitudes towards international law for a variety of scholarly debates.

Constitutional courts operate under a framework of formal and informal rules. While formal rules have been extensively studied, our understanding of informal rules remains limited. Courts often rely on internal practices, traditions and unwritten customs developed over time, posing a significant challenge due to their hidden nature. Numerous constitutional courts lack detailed voting protocols in their statutes and internal regulations, leaving essential aspects to the court's discretion, such as, inter alia, the voting order, deliberation style, outcome versus issue voting and tie-breaking protocols. By employing a case study of strategic breaching of informal voting protocols in the Mexican Supreme Court, this article highlights the complexity of enforcing informal voting rules given that external actors may be unaware of them, along with other factors. Even when informal rules are broadly known, certain circumstances may diminish the efficacy of informal sanctions addressing their breach. Thus, key judicial players, such as chief justices or judge-rapporteurs, may take advantage of the informal rules of voting protocols to advance their policy preferences.

The COVID-19 pandemic has made it clear that even when using trusted legal tools, courts may run into challenging problems. Governments reacted to an unprecedented (at least in the context of post-WW2 era of fundamental rights) global crisis by adopting measures that drastically limited fundamental rights in order to protect the lives and health of many. Courts, of course, were entrusted with protecting fundamental rights against governmental overreach. The question was, how strict should the courts be when reviewing governmental acts. On the one hand, they could have relied on substantive proportionality assessment. This option, however was virtually ignored and most courts have opted for a deferential approach. This article analyzes both of these approaches, their strengths and weaknesses, but ultimately it argues that a third option - semiprocedural review - is the best way out of this judicial conundrum. Relying on comparative as well as theoretical arguments, it argues that semiprocedural review is the best way to deal with challenging empirical question - even under conditions of epistemological uncertainty.

This Article interrogates the role of national constitutional courts within the Article 267 TFEU preliminary reference mechanism from both descriptive and normative angles. First, I demonstrate that although a clear majority of the constitutional courts submit references to the ECJ on a more frequent basis, differences in individual approaches remain significant. Subsequently, I argue that the core normative attractivity of the questions submitted in the course of domestic constitutional review lies in their participative and deliberative potential. Compared to ordinary courts, constitutional courts are better suited to amplify the ‘unheard’ voices of immobile EU citizens. By counterbalancing the demands of the EU's functional constitution, which is primarily based on the ideals of market capitalism, constitutional courts’ questions may contribute to the EU's capacity to generate legitimate decisions. Finally, I put my theoretical claims in context and analyse the main ways in which such deliberative potential can translate into practice.

This article offers a reconstruction and assessment of the emerging rebellion of European constitutional courts against the exceptionless supremacy of European Union (EU) law. It presents the ontological theories of supremacy and how the Court of Justice of the EU (CJEU) overcame the first two major challenges of its history: the existential challenge of canonizing the general doctrine of supremacy and the Solange challenge of national fundamental rights. It provides an account of the emerging ultra vires challenge, including its root cause and evolvement, and provides an assessment and sets out proposals. The article demonstrates that the crux of the matter is not the primacy of EU law but the interpretive primacy of the CJEU. It argues that the rebellion was triggered by the perception that the CJEU case law features a declining normative and an increasing policy character. The debate about the CJEU's evolutionary interpretation, in a certain sense, parallels US constitutional law's debate between originalism and the living constitution, with the difference that the EU is a pluralist legal order.

The minority question has long been a hot topic in Central and Eastern Europe. Whereas most CEE countries guarantee the privileged position of the dominant nation, they also recognize the existence of national minorities and provide special rights for them. Hence there is an apparent contradiction between the values of the nation-states: unity and diversity. This article proposes that to resolve this contradiction, it is necessary to define the concept, scope and limitations of group-specific minority rights, as well as their relationship with other human rights and the nation-state. Constitutional courts are appropriate candidates for this task. However, based on our analysis of the relevant constitutional jurisprudence of five CEE countries – Croatia, Hungary, Romania, Serbia, and Slovenia – it seems that constitutional courts in the region have failed to properly conceptualize minority rights. Instead of developing appropriate tests for assessing the constitutionality of legal regulations, they have only superficially touched upon the conceptual issues of minority rights, using incidental, case-by-case arguments to justify the (un)constitutionality of the legal provisions. Therefore, this article also attempts to outline a constitutionality test that may be suitable for constitutional courts to consistently evaluate submissions that challenge the constitutionality of laws on minority rights.