Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe

A COMPARATIVE VIEW OF THE CHIEF JUSTICE’S ROLE GUARDIANS OF THE CONSTITUTION: CONSTITUTIONAL COURT PRESIDENTS AND THE STRUGGLE FOR THE RULE OF LAW IN POST-SOVIET EUROPE † KIM LANE SCHEPPELE INTRODUCTION When the Berlin Wall fell and the governments of the former So- viet 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 popu- lation’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 † Laurance S. Rockefeller Professor of Public Affairs, Woodrow Wilson School and University Center for Human Values, Princeton University; Director, Program in Law and Public Affairs, Princeton University; Faculty Fellow, University of Pennsylvania Law School. I would like to gratefully acknowledge the repeated support of the Law and Social Sciences Division of the National Science Foundation in funding my research in Hungary (grant numbers SBE 94-11889 and SBE 95-14174 (SGER)) and Russia (grant number SBE 01-11963), though my Article does not speak for the NSF. I would also like to thank the Constitutional Courts of Russia and Hungary, as well as many of the individual Justices on both courts, for assisting my research, answering my questions, and letting me see the daily life of constitutional justice. The staff at the Institute for Law and Public Policy, particulary director Olga Siderovich, hosted my visit in Moscow in 1993 and provided both expert guidance and terrific company. I would also like to thank Serguei Oushakine, who introduced me to Russia and generally made my life in that part of the world both possible and enjoyable. And, finally, the editors of the Uni- versity of Pennsylvania Law Review deserve much praise for their willingness to take this on, their good humor, and their extraordinary patience. 1 HERMAN SCHWARTZ, THE STRUGGLE FOR CONSTITUTIONAL JUSTICE IN POST- COMMUNIST EUROPE 1 (2000). The only potential exception to this generalization is Estonia, which created a constitutional panel within its Supreme Court instead. Id. at 249 n.2, 253 n.7. 2 The phrase is associated with debate between Carl Schmitt and Hans Kelsen in 1931, which took place as the Weimar Republic teetered toward collapse. Schmitt’s (1757) 1758 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 154: 1757 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 László Sólyom 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 over- stepped 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 at- tempted to silence the voices of these outspoken Court Presidents. In both cases, however, the Court Presidents launched spectacular re- coveries 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 view was that the constitution needed a guardian and that the president—not the court—was the figure to guard it, because the court would be dependent on legality and therefore unable to take the initiative where it might be necessary. CARL SCHMITT, DER HÜTER DER VERFASSUNG [THE GUARDIAN OF THE CONSTITUTION] (1931). For a discussion of Schmitt’s views on this point, see Gabriel L. Negretto & José Antonio Aguilar Rivera, Liberalism and Emergency Powers in Latin America: Reflections on Carl Schmitt and the Theory of Constitutional Dictatorship, 21 CARDOZO L. REV. 1797, 1816-21 (2000). Schmitt’s interlocutor in that debate was Hans Kelsen, who argued that courts were the proper guardian. HANS KELSEN, WER SOLL DER HÜTER DER VERFASSUNG SEIN? [WHO SHOULD BE THE GUARDIAN OF THE CONSTITUTION?] (1931). For a discussion of Kelsen’s response to Schmitt, see ARTHUR J. JACOBSON & BERNHARD SCHLINK, WEIMAR: A JURISPRUDENCE OF CRISIS 70-71 (2000). Kelsen had been behind the crea- tion of the Constitutional Court in Austria after the First World War, and he remained an advocate of the institution throughout his life. See Hans Kelsen, Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution, 4 J. POL. 183, 188 (1942) [hereinafter Kelsen, Judicial Review] (suggesting that the dissolution of the Austrian Constitutional Court made the government more susceptible to fascism). 3 There are also, as we will see, very substantial differences between the two coun- tries, the two Courts, and the two Presidents. For now, I am simply emphasizing the uncanny similarities. 2006] CONSTITUTIONAL COURT PRESIDENTS 1759 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, par- ticularly in the early days of institution building. The tale I will tell is also a story of the establishment of a distinc- tive 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 ration- ales. The cogency and persuasiveness of the reasons matter in deter- mining the power that courts have. Judicial power has a moral basis because constitutions and laws are typically normative documents as 4 As Geoff Eley notes, the rise of social history in the 1960s and 1970s pushed the old political histories featuring major political leaders off to one side. Only with the rise of feminist history was the genre of biography reclaimed. But by then, of course, it was not the “great man,” but perhaps a great woman or someone altogether more or- dinary that captured historians’ attention. And then the point of such histories was to use the individual biography to capture the complexity of the period, not the glory of a singled-out life. GEOFF ELEY, A CROOKED LINE: FROM CULTURAL HISTORY TO THE HIS- TORY OF SOCIETY 168-69 (2005). 5 The American literature has, of course, emphasized judges’ democratic deficit without sufficiently considering that there may be other sources of legitimating power available to judges. For the classic view on the democratic deficit, see ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLI- TICS 16-23 (1962) (asserting that judicial review is counter-majoritarian because it places in the judiciary power that, in a democratic government, should reside with elected representatives). I have tried to argue more recently that there are other sources of judicial power. See Kim Lane Scheppele, Democracy by Judiciary. Or, Why Courts Can Be More Democratic Than Parliaments, in RETHINKING THE RULE OF LAW AFTER COMMUNISM 25, 28-31 (Adam Czarnota, Martin Krygier & Wojciech Sadurski eds., 2005) (arguing that judges often have superior information compared with legislators about what is going wrong in their societies and that many constitutions embody a sub- stantive sense of what democracy requires, which courts are in a good position to elaborate); Kim Lane Scheppele, A Realpolitik Defense of Social Rights, 82 TEX. L. REV. 1921, 1924 (2004) [hereinafter Scheppele, Realpolitik Defense] (positing that courts may enable democratically elected governments to stand up to external pressures that would otherwise undermine the governments’ democratic mandate). 1760 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 154: 1757 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 con- vey the intellectual and moral gravitas that allows the attribution of those principles to the institution.

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