Court of Peers – Political economy behind the triumph and crisis of Polish Constitutional Court

The Constitutional Court was strongest (in terms of activism and legitimacy) at the early stages of democratic transition, the very moment when it was expected to be the most vulnerable. And effective end of the constitutional adjudication happened quarter a century after the regime change, when constitutional democracy appeared strong and well entrenched. To explain this puzzle, this paper proposes three political-economy models of constitutional court position. First – ‘the court of peers’ – assumes political selection of constitutional judges to provide representation of ideological sensitivities, and largely consensual decision-making inside the Court. Second – ‘the Constitutional Chamber of the Supreme Court’ – assumes de-politicized selection procedures, downplays ideological sensitivities and encourages dissent. Third – called the ‘Third Chamber of the Parliament’ – amounts to the dismantling of the constitutional adjudication, as political selection of constitutional judges transforms Court in yet another majoritarian institution pursuing party goals. It is argued, that the negotiated nature of Polish transition created demand for ‘the court of peers’ sort of institution, thereby fostering Constitutional Court legitimacy among politicians and restraining them form assaults on its independence. However fundamental shift in the political landscape observed in 2005 – diminishing of the post-communist formation and the ascent of two post-Solidarity parties led by new generation of leaders – shattered this consensus and resulted in Constitutional Court erosion towards the ‘Third Chamber of the Parliament’.

Keywords: Polish constitutional crisis, constitutional court, judicial independence, democratic transition.