Constitutional Judges as Strategic Actors in Hungary

Combining the strategic and the attitudinal models, the mixed model of judicial behavior is one of the most powerful explanatory models (Garoupa and Kantorowitz 2015). However, recent empirical findings call for a refinement and extension of the model with the logic of appropriateness. The existing literature shows that crucial factors are limiting the theoretical tenets of the mixed model (Garoupa and Grembi 2015; Coroado, Garoupa, and Magalhães 2017; Epstein and Posner 2016; Garoupa, Gili, and Gómez Pomar 2021; Espinosa 2017; Amaral-Garcia and Garoupa 2017; Pellegrina and Garoupa 2013; Hanretty 2012; López-Laborda, Rodrigo, and Sanz-Arcega 2018; Garoupa, Gomez-Pomar, and Grembi 2013; Garoupa, Gili, and Pomar 2021). This paper, based on the empirical evaluation of an original dataset of the Hungarian Constitutional Court’s performance between 1990 and 2020, contributes to this literature by arguing that judges of the HCC have been mainly, but not exclusively, influenced by their political affiliation since the beginning of the constitutional adjudication in Hungary. By relying on an original and comprehensive dataset of the JUDICON-EU project, we found that the first court (1990-1998), while preserving its unity (i.e. publishing very few dissenting opinions), was less activist and stringent in politically salient cases than previously supposed in the literature. Nevertheless, results also show that political polarization, evinced by the skyrocketing of the number of dissenting opinions, started right after the termination of the mandate of the first president of the court. Furthermore, political affiliation of the judges played a crucial role in dissenting coalitions well before the court-packing in the 2010s. Interestingly, it was the third court (2010-2020) in its first three years that most actively interfered in the legislative process and constrained the legislature more heavily than any other courts previously in politically salient cases. While the HCC’s performance in the years 2014-2020 confirms the main arguments of the mixed model, empirical results of the 2010-2013 period challenges it, since the court-packing between 2010 and 2013 did not promptly and directly resulted in a deferential court. Overall, we argue that the mixed model of judicial behavior has some explanatory power, but it is limited by the logic of appropriateness not only in the 90’s but, more surprisingly, even between 2010 and 2013.