The Unlikely Survival of a Constitutional Court: The Politics of Judicial Review in Inter-War Austria

The global spread of judicial review as a core institution of constitutional democracy is commonly considered a post-WW2 phenomenon. However, at least in Europe, the Inter-War period was already a time of fierce conflict over judicial review. In Norway, for example, the Labour party attempted to abolish judicial review several times, Switzerland rejected its introduction in a referendum in 1937, and several German governments developed plans to establish centralized judicial review only to drop them in 1929. Within Inter-War Europe, Austria stands out as the only country where judicial review was established, actively exercised and survived until the breakdown of democracy. What explains the survival of judicial review in Inter-War Austria? At first glance, the political conditions in Austria were not more favourable to the sustainability of judicial review than elsewhere. Polarization, the lack of a consensus over the form of political order and a quick succession of crises made it unlikely that politicians would accept judicial constraints on their legislative powers. Moreover, the Austrian case presents the puzzle that representatives of the Labour Party were strong supporters of the exercise of judicial review by the newly established Constitutional Court – a stark contrast to the Left’s traditional aversion against judicial review in many countries. I argue that the key factor behind the institutional survival of judicial review and the Constitutional Court during the inter-war period was the federal character of the Austrian political system. However, my explanation goes beyond the functionalist relationship between federalism and judicial review that is often posited. Instead, I trace the influence of federalism at the level of individual political actors on the basis of original archival evidence and secondary sources. Both a causal chain through individual “insurance preferences” and through the development of an ideology in favour of judicial conflict resolution are discussed. I conclude by putting the Austrian case into the wider context of the conflict over judicial review in Inter-War Europe. Empirically, this paper contributes to the understanding of the politics of judicial review before its “golden years” after World War II. Theoretically, it highlights a hitherto neglected factor – a possible complementarity between federalism and the political sustainability of judicial review – and thereby contributes to the discussion on the sustainability of judicial review in defective democracies.