03 November 2020
Stabilizing the US Judiciary by Threatening to Pack It
Reforming the judicial appointment process in the US will take a constitutional amendment. Without it, reform attempts are likely to fail. For conservatives especially, altering the courts now, after securing a very conservative majority unprecedented in recent history, will seem unappealing. They may (perhaps correctly) conclude that, given their systematic advantages in the Senate and therefore electoral college, endless escalation is a game they may be able to win. This blog post proposes a simple mechanism that aims to force a stabilizing constitutional amendment forward while preserving the option to escalate if they cannot secure cooperation from the Republican party. Continue reading >>
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23 October 2020
Prophezeiungen, die sich selbst erfüllen
Über rechte und linke Justizpolitik und die liberale Versuchung der Äquidistanz Continue reading >>
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23 October 2020
Self-Fulfilling Prophecies
On left-wing and right-wing judicial policies and the seductive liberal illusion of equidistance Continue reading >>
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25 September 2020
Action and Reaction
On the packing of courts, when one should do it, and when one should not. Continue reading >>25 September 2020
Aktion und Reaktion
Über Court Packing und wann man es lassen sollte. Und wann nicht. Continue reading >>
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11 September 2019
Recognizing Court-Packing
There is near scholarly consensus that President Recep Tayyip Erdogan has successfully packed the Turkish Constitutional Court (TCC). Court packing is commonly understood as expanding the membership of the court, appointing judges with long tenures that extend beyond a couple of election cycles, and who are ideologically committed to the executive’s constitutional vision. These elements, however, are still foreign to Turkey’s political elites. Continue reading >>03 April 2019
Court-Packing On the Table in the United States?
Surprising many Establishment-oriented commentators and legal scholars, several candidates seeking the Democratic Party’s presidential nomination have endorsed – or at least have expressed willingness to think about – “Court-packing,” that is, increasing the number of Supreme Court Justices to offset the control Republicans gained by what Democrats regard as unfair tactics. Continue reading >>
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14 February 2017
A Polish Marbury v. Madison?
Has the new President of the Polish Constitutional Tribunal been lawfully appointed? This question is at the core of the latest act of the ongoing judicial drama in Poland. The Warsaw Court of Appeals has now referred this question to the Polish Supreme Court. Civil courts are called upon to at least partially fill the gap left by the subjugated Constitutional Tribunal in safeguarding the rule of law in Poland. Continue reading >>10 January 2017
The Hungarian Constitutional Court and Constitutional Identity
Ever since the 2010 parliamentary elections Hungary has set off on the journey to became an ‘illiberal’ member state of the EU, which does not comply with the shared values of rule of law and democracy, the ‘basic structure’ of Europe. The new government of Viktor Orbán from the very beginning has justified the non-compliance by referring to national sovereignty, and lately to the country’s constitutional identity guaranteed in Article 4 (2) TEU. This constitutional battle started with the invalid anti-migrant referendum, was followed by the failed constitutional amendment, and concluded in early December last year by a decision of the Constitutional Court, in which the packed body in a binding constitutional interpretation rubber-stamped the constitutional identity defense of the Orbán government. Continue reading >>
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30 March 2016
Paradoxes of Constitutionalisation: Lessons from Poland
This comment aims to explain a number of paradoxes of constitutionalization on the example of the current constitutional crisis in Poland. It attempts to demonstrate that this crisis is not only political in its nature, but structural as it results from the inherent tension between the concept of rule of law, democracy and human rights. It is also argued that the success of constitutionalization as a global project depends on strong social endorsement of constitutional institutions and practices, including judicial review. Continue reading >>
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