Are high levels of dissent on constitutional tribunals pathological, in the sense that they indicate overtly politicised courts which make rulings based on the preference of those justices currently serving on the court, rather than rulings which are based on more predictable legal arguments that might bolster (or at least not impair) the rule of law? Or may dissenting opinions also be found in constitutional tribunals which are apolitical -- or at least, not party-political?
Prevailing academic opinion has often concluded that dissenting opinions, where they exist, are either the sign of political preferences on behalf of the judges, or the sign of limitations on the political independence of the court. The latter is a particular concern in countries with limited democratic experience.
In this paper, I present data on dissent in five Central European Constitutional Courts -- Estonia, Slovakia, the Czech Republic, Hungary, and Bulgaria.
I suggest that there exist, in some courts, meaningful patterns of dissent which cannot be reduced either to a left-right or government-opposition dimension, but rather reflect partly-political, partly legal preferences concerning the standing of, and attitude to be taken towards, plaintiffs alleging an infringement of their constitutional rights. Specifically, such patterns are present in the Czech Republic and in Estonia. Such patterns of dissent are easily distinguished from other patterns which are explicitly political, and where judges' dissent is motivated in large part by the identity of the appointing actor. Specifically, we can identify the Bulgarian case as the opposite extreme. I show how these two cases can be distinguished, and speculate on whether there is anything in the institutional structure of these five courts which promotes one or the other tendency, or whether the prime factor is systemic, namely the quality of democracy in the country.
