The study of constitutional courts (CCs) of post-communist Central Europe has received a wake-up call which questions the belief in CCs’ transformative potential for the consolidation of democracy. Such belief, a typical feature of the literature assessing CCs’ performance in the region in the 1990s, was often framed in the terminology of ‘activism’, notably in the Hungarian Constitutional Court’s (HCC’s) interpretive techniques combined with its broad formal powers. However, few studies examined why at least some CCs in the region failed to prevent the rise of non-democratic governments which have fuelled the deconsolidation of democracy in the region. This paper addresses this gap via the cases of Hungary and Slovakia, where the CCs have taken a different trajectory. Even after the illiberal surge connected to the COVID-19 pandemic and subsequently amplified by the post-2023 governing majority, the Slovak CC (SCC) remained an independent institution, while the HCC serves as the prime regional example of a CC with questionable independence. At the same time, both polities have experience with non-democratic governments: Slovakia between 1994-1998 and since 2023 and Hungary since 2010. While the SCC has been seen as an important institution in facilitating the downfall of ‘Mečiarist’ semi-authoritarianism after the 1998 general elections, the HCC, while broadly (though not unanimously) celebrated for its ‘activism’ in the 1990s, has become all but marginalized, with authoritative scholarship disagreeing even as to whether calling it a ‘court’ is still warranted. In turn, the (ir)relevance of the SCC in the post-2023 de-democratizing turn in Slovakia has been understudied so far.
Against this backdrop, the paper probes the extent to which references to democracy which shed light on the CCs’ self-perceptions of responsibility for the state of the political regime are relevant indicators for understanding the CCs’ interplay with the broader political regime context and ultimately their potential to facilitate pro-democratic resistance. Revisiting historical institutionalism and the political regimes approach to judicial decision making, the paired comparison of Hungary and Slovakia combines a qualitative analysis of judgments referring to democracy and semi-structured interviews with ‘court insiders’ covering the CCs’ post-1989 developments that have been conducted in several waves between 2018—2025. The analysis focuses on the area conventionally considered to be the primary ‘home’ of CC activism: the ‘countermajoritarian’ protection of selected human rights, so-called civil and political rights.
The analysis challenges the commitment of both the HCC and SCC to the protection of human rights against majority will, the latter typically equated with democracy in the decisions and the reflections of the ‘court insiders’. The findings offer empirical support for institutionalist scholarship that emphasizes the impact of ideas in calibrating the self-perceptions of legal-political institutions and their positioning in the political regime. Furthermore, they indicate that the CCs’ impact is inseparable from the political regime context in which they are located. Ultimately, the paper invites questions on the use of the concepts of ‘activism’, ‘restraint’ and ‘deference’ in the context of constitutional courts’ human rights protection functions and beyond.
