Dissenting Coalitions at the Hungarian Constitutional Court 1990–2018

Abstract

Over the last thirty years, the global spread of judicial review has been undoubtedly one of the most notable political developments – not only in Western countries, but all around the world. After the 1989/1990 transition process, constitutional courts (CCs) have been established also in Central and Eastern Europe. Recently however, constitutional courts have been facing growing backlash in several countries in the region, implying that legislatures often heavily constrained by constitutional adjudication demand to retrieve much of the power that had been earlier assumed by constitutional courts. In Hungary, not only were the competences of the constitutional court redrawn and limited after 2010 (Gardos-Orosz 2016) but also the composition of the court was bent to suit the interests of the governing majority. Enjoying a supermajority in the legislature, the governing Fidesz party was able to nominate and elect judges to the Hungarian Constitutional Court (HCC) without seeking the opposition parties’ consent or electing judges at a proportional rate between government and opposition – practices that had dominated the previous two decades. However, for a short period between 2015 and 2018, when Fidesz lost its two-thirds majority it was compelled to compromise, thus new judges were nominated according to an agreement between the parties. In this context, the political background of the HCC and especially its judges’ behavior received undeservedly sparse scholarly attention even though a few recent studies have attempted to explore how the new judges nominated after 2010 decided on cases related to the legislature dominated by Fidesz, the party that sent them to the court benches (Halmai 2014; Szente 2015; EKINT 2015). Our study aims to give a more general account of the relation between the judges’ political background and their behavior in the different institutional and political settings that determined the functioning of the HCC between 1990 and 2018. More specifically and as a continuation of our earlier research (Pocza et al. 2019), we address the problem of the judges’ coalitions by analyzing dissenting opinions. We intend to explore whether political background might have a role in determining whether a judge joins the majority or dissents. Based on a network analysis, our results suggest that considering the three periods of the HCC, political background was a determining factor already before 2010 even in the case of judges elected by a political compromise. First, our study describes the applicability of a slightly modified version of the attitudinal approach that suggests that judicial behavior is influenced by political background; then it moves to the methodology that allows for quantifying the constitutional court’s decisions regarding their strength and the role of dissenting opinions, as well as determining judges’ coalitions by adopting network analysis. Second, we analyze judicial behavior and coalitions to give an account for a periodization of the practice of the HCC since 1990 and draw a map of networks determined by judges’ political background.