Abstract
AbstractThis Article examines changes in dissent patterns that occurred on the Polish Constitutional Tribunal during a period of intense constitutional and political change in Poland. An analysis of these dissents shows judges only rarely used this opportunity to express the traditional differences of opinion on law or policy. Instead, judges on the Tribunal increasingly used dissents in an altogether new form – as a way to broadcast allegations of legal and procedural violations that occurred within the court’s operation itself. More troublingly, some judges also used their dissents to advance distinctly political narratives and overtly attempt to de-legitimize the court’s announced decisions. Ultimately, these dissents show that constitutional judges may not be immune to participating in the larger social and constitutional battles within society. In fact, these dissent patterns suggest that, in a more fragmented and polarized era of politics, judges can and have made use of the dissent as a way to broadcast distinctly political messages.
Highlights
This Article examines changes in dissent patterns that occurred on the Polish Constitutional Tribunal during a period of intense constitutional and political change in Poland
In the law, and could perhaps lead to the de-legitimization of the court’s outcome. It is largely for reasons of certainty and legitimacy that most continental European states traditionally shunned the practice of dissent, though today this prohibition no longer exists on most European constitutional courts
This Article examines changes in dissent patterns that occurred during a period of intense constitutional and political change in Poland—a time of ongoing political drama—in which the Polish Constitutional Tribunal was thrust into a central role
Summary
A dissenting opinion reflects a decision by at least one member of a collegial judicial decision-making body to make public an underlying disagreement within the group. Where it is offered, the decision to file a dissenting opinion has been viewed by many legal scholars and practitioners as an opportunity to advance several important interests. If actors who refuse to accept the current constitutional bargain are able to appoint judges to the court, dissenting opinions from those judges could begin to be seen not as reasoned and principled differences on law’s reach, but as part of a less principled political battlefield. This democracy-enhancing limitation has critical importance today, as populist parties like PiS in Poland generally are defined by their desire to fundamentally change and restructure the current constitutional order through the political process.. See Cas Mudde, The Populist Zeitgeist, 39 GOV’T & OPPOSITION 541 (2004). 37In 2016, for example, eight out of twenty-one, or thirty-eight percent of final decisions from judicial references and constitutional complaints, had dissents. 38For more on this point, see WOJCIECH SADURSKI, POLAND’S CONSTITUTIONAL BREAKDOWN (2019)
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