When a Guardian Fails: Identifying the Influences of Constitutional Courts on Democracy

Are constitutional courts conductive to democratic regimes? Answers to this puzzle mostly work with concepts such as non-majoritarian institutions or counter-majoritarian difficulty as well as juristocracy (Hirschl 2004) or judicial activism (e.g. Alexander 2015), the latter used predominantly by those criticizing any more extensive role of judges (with an alleged legitimacy deficit) on polities. However, with rare exceptions (Kneip 2011), there have been no efforts to conceptualize how constitutional courts may influence democratic regimes. Approaching the question both through focusing on the outcomes of the court’s decision making and the decisions made by its individual judges that may or may not side either the overall direction of the court’s decision making or its concrete outcomes, this paper offers an approach how through a detailed look at the trajectories of decisions in individual cases the overall contribution (or the lack thereof) of constitutional courts to democracy can be identified. Applying process tracing methodology on the under-researched case of the Slovak Constitutional Court (SCC), which has come to be criticized for damaging democracy through unclear and often biased decision making practices from the perspective of certain domestic political actors, the paper shows that despite the Court decided thousands of cases since its establishment in 1993, only some have come to be perceived as decisive for its impact on democracy. Moreover, these cases have been taken up by other political actors and the media and used in a number of ways to produce justifications for certain political practices, some of which helped strengthen various elements of democracy while others have been prone to undermine it. While these justifications alone cannot be equated to actual political outcomes, it is argued that they are the starting point for a more nuanced determination of a constitutional ‘guardian’s’ impact on democracy. Finally, including the perspectives of individual judges through their dissenting opinions and other voices they raised allows to hypothesize on their concrete preferences and positions vis-à-vis the pillars of the democratic regime.