Guardians of the constitution: constitutional court presidents and the struggle for the rule of law in post-Soviet Europe.

• Author: Scheppele, Kim Lane
• Position: 2005-2006 Symposium: The Chief Justice and the Institutional Judiciary

INTRODUCTION

When the Berlin Wall fell and the governments of the former Soviet world reconstituted themselves under new constitutions, every country in the region created a new constitutional court. (1) Charged with ensuring that their nations' new constitutions would in fact be followed, these new courts often became both the center of the population's high hopes and a frequent annoyance for the elected governments that had to comply with their decisions. The hope was that the courts would be the "guardians of the constitution"; (2) the reality was that many of these courts tried hard and were eventually squashed by ambitious political leaders who wanted to govern without judicial constraint.

This Article examines the infancy of two Constitutional Courts and their firebrand first Presidents--focusing on Laszlo Solyom of the Hungarian Constitutional Court and Valerii Zorkin of the Russian Constitutional Court. In both cases, these Presidents came to be seen as the public faces of their respective Courts, and they often overstepped the bounds of judicial modesty to openly criticize their governments for failing to take constitutional principles seriously. Both frequently gave interviews to the media and spoke as if they personally were the mouthpieces of their Constitutions. Both set themselves up as political leaders in a fragile world of political reconstitution, and both created public personae for themselves, and for their Courts, as principled populists who stood up for the underdog in the big political fights of their time. In both cases, elected political leaders attempted to silence the voices of these outspoken Court Presidents. In both cases, however, the Court Presidents launched spectacular recoveries of their public positions in just a few short years, building on their popular reputations for being aggressive constitutional guardians. Both Presidents rose from the ashes of their respective Courts to emerge again as phoenix-like images of constitutionality itself. (3)

The tale I tell about Russia and Hungary is not just a tale of two Courts. It is, in many ways, a more general story about the fragility of new institutions and the importance of personality in shaping positions that have not yet established themselves as important offices that can retain their power regardless of the office holder. Until new institutions have a history that gives them a certain stability, it is often the first few occupants of an office who define the meaning, power, and shape that the office takes. While "great man" history is frowned upon these days, and often for good reason, (4) there are moments in the development of institutions when their occupants are in many ways more important than the impersonal influences of structure. The early days of the Russian and Hungarian Constitutional Courts bear out this view that the accidents of occupancy can be crucial, particularly in the early days of institution building.

The tale I will tell is also a story of the establishment of a distinctive form of judicial power. Courts famously have the power neither of the purse nor of the army, and so they generally rely on other sources for authority, sources that are both intellectual and moral. (5) Judicial power has an intellectual basis because courts are institutions of reason that publish not only their decisions but also their rationales. The cogency and persuasiveness of the reasons matter in determining the power that courts have. Judicial power has a moral basis because constitutions and laws are typically normative documents as well as strictly legal ones, and courts must be seen as engaging in something bigger and more important than mere legalism. Having a principled and coherent vision is one way that a court can cajole from the other branches the critical resources it needs to function and the legitimacy it needs to hold off sheer force. In the early days of a court, when these principles are not yet established, a court can establish its unique place in the political order by virtue of being the locus of principled, moral, intellectual decisions. Here, too, the person of the constitutional court president can be crucial if the president can convey the intellectual and moral gravitas that allows the attribution of those principles to the institution. In both cases we will be examining, the Court Presidents took to the media early and often, holding press conferences, giving interviews, and explaining at every opportunity how a constitutional system works. In many ways, it was the extrajudicial lectures given by these experienced former professors that solidified the position of the new Constitutions and of the new Courts. Both Presidents made the case for the creation of a uniquely judicial form of power that transcended personality, while simultaneously personifying the rule of law themselves.

Finally, the tale I have to tell is also a story of the separation of powers as a contact sport. Hannah Arendt famously made the argument that successful constitutions do not just constrain power, they create power through the opposition of interest to interest. (6) States (and courts) can fail. What prevents their failure in the early fragile days of a new constitution is the willingness of new institutions to deploy their power and to parry off the power of others in return. Presidents of new courts have to be willing to assert power to be granted power, and in the early days of a new institution, that power has to be asserted before anyone can really be sure that others will recognize it as such. The political strategies of constitutional court presidents, then, matter a great deal in the eventual recognition of the power of a court. Constitutional court presidents, in short, have to have sharp elbows to ensure that they can have a seat at the table of power.

Our story of Russia and Hungary in the early days of their Constitutional Courts will illustrate all three of these factors: the centrality of personality, the importance of establishing uniquely judicial power, and the strategic deployment of constitutional aggression. Before we examine our two cases, however, we should first consider the ways in which the legal systems of Hungary and Russia (and for that matter, most countries in the civil law world) differ from the legal system of the United States, because these differences affect the powers of the Chief Justice or Court President.

1. CHIEF JUSTICES, CONSTITUTIONAL COURT PRESIDENTS, AND DIFFERENCES IN INSTITUTIONAL STRUCTURES

   Most of this Symposium addresses the American court system (and the American federal system, at that). But if we are to understand the situation of the high court president as a more general phenomenon, we need a comparative perspective to see that the United States is unusual for several reasons--reasons that bear on both the structure of courts and the capacities of court presidents. In particular, the Chief Justice of the United States is the head of a Court that both sits at the apex of a federal judicial system and that also entertains petitions to review decisions from state courts. This provides for an unusual centralization of judicial functions in one court, something many other countries have avoided. In addition, as other articles in this Symposium have argued, the unique structure of the American judiciary makes the role of the Chief Justice a particularly crucial one in the maintenance of the entire federal court system. (7) Since I will focus on the role of the high court chief executive in legal systems constructed very differently from that of the United States, I first need to explain the general contours of a constitutional court and how it differs structurally from the U.S. Supreme Court.

   1. The Jurisdictional Segregation of Constitutional Courts

      The power of judicial review is diffuse in the United States, which means that any federal court can hear and decide federal constitutional questions. In systems that have constitutional courts, by contrast, it is typically the case that only the constitutional court has the power to rule on constitutional matters. (8) As a result, in these systems, all constitutional questions have to be referred to the constitutional court, both from other sorts of courts and from other places in the political system. Not only is the constitutional court the only court to hear constitutional questions, but it also has the jurisdiction to hear only constitutional questions, which means that questions of routine interpretation of other legal sources are simply never on a constitutional court's docket. The "ordinary courts" do not deal with constitutional questions, and the constitutional court does not deal with ordinary legal questions. As a result, a constitutional court is generally the only court that has the power to nullify laws inconsistent with the constitution and to require the government to take steps to correct the problem.

      The constitutional court typically has a jurisdictional segregation from other courts, which means that constitutional court decisions have a different status and audience than decisions of the U.S. Supreme Court. If the constitutional court rules in a case that would be a "case or controversy" in the United States (that is, where there are concrete individuals locked in a dispute), the constitutional court has the final word in the matter only if the case involves only a constitutional claim. Because the constitutional question can be just one of many in a concrete dispute, matters decided by the constitutional court will often be referred back for final resolution to the ordinary court that sent the case to the constitutional court in the first place. (9) In short, the constitutional court can address a specific factual matter only insofar as that matter presents only a constitutional claim. All other claims (including ones that depend on fact finding) have to be settled elsewhere. (10)

      But...