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Fragile Democracies: Contested Power in the Era of Constitutional Courts
... This 'representation-reinforcing' approach to judicial review (Dixon and Hailbronner 2021) understands CCs as institutions guarding against deficits of the political process and matches with Dahl's conceptualization of democracy as a polyarchy, consisting of two central dimensions: contestation and inclusiveness (Coppedge, Alvarez, and Maldonado 2008;Dahl 1991). Via offering a blueprint for CC action, it feeds into thinking about what CCs should do under the conditions of erosion of democracy (Issacharoff 2019;Roznai 2020), with the most prominent position being that they should 'avoid direct constitutional confrontation and instead [working] in less politically charged ways' (Landau 2015(Landau , 1084. However, these theories largely do not permit the CCs to think about democracy beyond protecting the political process. ...
The study of constitutional courts (CCs) of post-communist Europe typically entailed the belief in CCs’ transformative potential for the consolidation of democracy. Recently, this belief has been questioned, albeit the knowledge of why at least some CCs in the region failed to prevent the rise of non-democratic regimes remains limited. This article addresses this gap via the cases of Hungary and Slovakia, which have taken a different trajectory post-2010: the Slovak CC (SCC) remains an independent institution, while the Hungarian CC (HCC) has been packed by the executive. By combining contextual case law analysis of judgments referring to democracy and semi-structured interviews, the article shows that, during critical moments, the HCC did not perceive itself as responsible for Hungarian democracy, which resulted in its self-marginalisation. The SCC was largely spared from similarly critical moments, which, however, facilitated particular self-perceptions of its responsibility (or lack thereof). These findings offer empirical support for institutionalist scholarship that emphasizes the impact of ideas in calibrating the self-perceptions of political institutions and their positioning in the political system. Constitutional courts remain inseparable from the political regimes they are located in.
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