Resisting the Majoritarian Temptation: The Understandings of Separation of Powers and Democracy by the Constitutional Courts in Slovakia and Hungary

The foundational principles of constitutionalism are believed to be under assault. This premise shapes the study of constitutional courts (CCs), where the emphasis is placed on their limited capacities to resist the assaults and contribute to democratic political change. Focusing on selected centralized CCs in Central Europe, this paper questions the claims of the CCs’ limitations and brings attention to the relatively limited discussion on CCs as independent ‘rule-adjudicating’ institutions, thereby contributing to the studies of apex courts in general. It does so by establishing a connection between CCs and democracy, more specifically, between democracy and the CCs understanding of it. The understanding of democracy, that can be studied empirically with the help of a multidimensional conceptualization, is a suitable starting point for investigating the causal circle capturing how CCs influence, and are influenced by, the state of democracy. The paper ultimately aims at a better understanding of how CCs can stop democratic backsliding or decay that is not satisfactorily supplied by existing approaches. Its research design departs from selected theoretical accounts on the judiciaries’ influence put forward by new institutionalism and combines these with major normative and empirical understandings of constitutional adjudication in a democratic context. The first step of the emerging causal circle is empirically analyzed via the shifting understandings of democracy in the context of major political developments in two Central European states with formally the most powerful CCs—Slovakia and Hungary. A population of judicial decisions determined through keyword search provides a dataset that is corroborated with input from semi-structured interviews. The paper takes stock of one of several dimensions of the CCs’ contribution of democracy, that of the separation of powers, and shows that contrary to the established knowledge about the Slovak and Hungarian CCs, they largely succumbed to the ‘majoritarian temptation’, perceiving democracy as unrelated to the separation of powers during the heyday of both CCs in the 1990s. However, while the Slovak CC gradually started to resist this temptation in the post-2000 period, it was less so in the case of the Hungarian CC which culminated in its ‘voluntary defeat’ in front of the sweeping constitutional changes by the legislative supermajority before the court-packing exercise of the autocratic executive. This juxtaposition helps identify one reason why some CCs as opposed to others appear to succeed in guarding democracy—namely, the self-defeating consequences of the limits of their understanding of democracy.