Judicial Meanings of Democracy: Political Participation and Deliberation at the Hungarian and Slovak Constitutional Courts

The existing mainstream approaches to the relationship between judicial review and democracy are connected with the understanding of democracy as little more than majority rule. This premise can be recognized both in theories of the countermajoritarian difficulty or political science scholarship emphasizing the capacity of judicial review to enhance the position of political majorities, the ruling elites or prevailing public perceptions. However, there is no straightforward reason why this simplified relationship should withstand empirical scrutiny. This paper challenges the equation between democracy and majoritarianism in these approaches through studying the ‘democratic guardianship’ entailed in judicial review. Departing from a reflection on the potential and limits of various institutionalist approaches to judicial review, the paper develops an account of democratic guardianship whereby the courts’ capacity to protect democracy is conditioned by their self-understandings as ‘Guardians of the Constitution’ as opposed to ‘Guardians of Democracy’. It argues that these self-understandings can best be studied empirically through identifying the courts’ understandings of the meanings of democracy itself in their decision making. These meanings emerge from judicial decisions, including both majority and separate opinions, and are frequently contrasting, even contesting each other. The paper analyzes the judicial meanings of democracy in the cases of two Central European constitutional courts operating under different regime conditions. Scrutinizing one dimension of a five-dimensional conceptualization of the diverse understandings of democracy, that of political participation and deliberation, the paper shows that both courts were actively subsuming these values under a conception of democracy but have predominantly conceived the latter in a majoritarian fashion. While this conception did not fundamentally undermine the Slovak Constitutional Court’s role against a semi-authoritarian regime in the 1990s, it proved detrimental in the decisions of its Hungarian counterpart battling against a more sophisticated illiberal political rhetoric in the campaign preceding the 2010 elections that granted constitutional majority to the parties invoking such rhetoric. Hence, the inability to resist the illiberal temptation, equating (direct) democracy with mere majority rule, paved the way to the de-democratization of the Hungarian political regime. The resulting conundrum serves as a lesson to courts interpreting the meaning of democracy not only in the context of participation and deliberation. Beyond courts, it offers an approach to studying the meanings of democracy in the context of Central European post-communist political regimes, that is inspired by a maximalist conceptualization of democracy in order to capture the broadest range of meanings that institutions operating in such regimes read into it.