Debates about the politicization of constitutional courts are as old as the institution itself. The concept’s originator, Hans Kelsen, emphasized the importance of preventing members of the government and parliament from sitting on constitutional courts, “because their acts are the acts to be controlled by the court.” While this idea is deeply entrenched—at least to the extent that simultaneous membership in the executive or legislative and judicial branches is widely prohibited—the same does not hold true across other temporal dimensions. In his new book Ex-Ministers as Constitutional Judges, published by Oxford University Press, Prof. Mathias Möschel examines the effects—both negative and positive—of this practice, focusing on the constitutional courts of France, Italy, Austria, and Germany.
Prof. Mathias Möschel is the Head of the Law Department at Central European University in Vienna. In this RevDem Rule of Law podcast, conducted by Konstantin Kipp, he discusses the findings from his book as well as current developments.
The Thought Process
Ex-Ministers as Constitutional Judges takes a unique and unprecedented comparative approach in the debate about the politicization of constitutional courts, drawing on interviews with more than 30 current or former constitutional judges. Möschel explains that his interest in the phenomenon — the appointment of politicians to constitutional courts — arose from observing this practice in the different countries covered in the book, all of which he knows through either his work or his personal background. The final decision to write a book on this topic was prompted by the affair surrounding Wolfgang Brandstetter, a former Austrian Federal Minister of Justice who became a judge of the Austrian Constitutional Court with virtually no gap after serving as a member of the Executive. Following a scandal in which sensitive chats between Brandstetter — by then a judge — and employees of the Ministry of Justice became public, he resigned from his position.
Risks & Benefits
The conversation then turns to the findings of Möschel’s book — specifically, the risks and benefits of appointing former ministers as guardians of the constitution. Although all the courts analyzed are located in mainland Europe, their design and institutional culture differ substantially, which leads to varying outcomes when politicians are appointed. As for the potential benefits, Möschel explains that strong political personalities can lend courts both prestige and political stamina — qualities that have been historically important, as the constitutional courts were not always the widely accepted institutions they are today. Other important benefits include a deeper understanding of political processes — often greater than that of career judges or legal scholars — as well as, in some cases, specific expertise in relevant fields. However, as Möschel points out, these advantages also come with risks — the “flipside of the coin.” Former politicians on constitutional courts not only pose an inherent challenge to the separation of powers but may also find themselves ruling on legal matters in which they were previously involved, raising concerns about the respect for a principle as old as ancient Rome: nemo iudex in causa sua — no one should be a judge in their own case.
The conversation then turns to the question of whether the risks or the benefits outweigh the other. While Möschel’s Austrian interviewees clearly argued that the risks are too high to be considered acceptable, in Italy and Germany the prevailing view is that “only the quantity makes the poison” — meaning former ministers are acceptable as long as they are not too numerous. In contrast, in France, it almost seems natural for a judge of the Conseil Constitutionnel to have previously been part of the executive. Weighing the risks and benefits he has identified, Möschel concludes that the former outweigh the latter.
However, this issue does not seem to play a significant role in the context of democratic backsliding — at least not in Poland under the PiS Government or in Hungary under Fidesz, where the appointees aimed at capturing constitutional courts had different profiles. Nonetheless, Möschel argues that this will not deter right-wing populists from appointing former members of the executive as partisan judges to their countries’ constitutional courts in the future, claiming they are simply following the example set by other European democracies.
Macron, Le Pen & Meloni
Coinciding with the publication of Möschel’s book, appointment procedures took place in both Italy and France. In both cases, at least part of the appointments were widely criticized for having too close a connection to the executive. In France, President Emmanuel Macron was able to appoint one of his long-time confidants as President of the Conseil Constitutionnel, avoiding a parliamentary veto by just one vote. Regarding the “at least bad optics” this creates — especially since the Conseil Constitutionnel may soon need to rule on the recent decision declaring Macron’s long-time political rival, Marine Le Pen, ineligible for five years — Möschel argues that this closeness between the court and the French executive has, in any case, been a longstanding feature of the French system. The former President of the court who was replaced, Laurent Fabius, had himself been French Prime Minister. As unfortunate as this situation may seem, Möschel suggests it could actually worsen, given that former French Presidents are ex officio members of the Conseil Constitutionnel and can always choose to serve as judges on the court. While Macron, a president typically known for using all means at his disposal, has promised not to partake in the court’s work, should the right-wing populist Rassemblement National ever come to power in France, it would provide him with a perfect opportunity to retract his promise by arguing that his participation is necessary to protect the country from the excesses of a government with authoritarian tendencies.
In Italy, one of the new judges of the Corte Costituzionale, Francesco Saverio Marini — the candidate of Fratelli d’Italia — is said to be the architect of the constitutional reforms planned by Italian Prime Minister Giorgia Meloni. These reforms have been widely criticized and described as reminiscent of Benito Mussolini’s notorious Acerbo Law, which paved the way for dictatorship in Italy over a century ago. While Möschel argues that the recent appointments don’t pose a risk of Italy’s constitutional court becoming over-politicized in the way he discusses in his book, the Italian legal system faces a number of other issues. Unlike other systems, Italian constitutional judges do not remain in the court until their successor is elected. Given the requirement for a minimum number of judges, delays in appointing new ones can pose a serious threat to the court’s ability to function. Before the recent appointments, if even one judge had been unable to serve, the court would have been rendered non-functional. Furthermore, in Italy, the recusal or abstention of judges due to doubts about their impartiality is not allowed — a key tool for addressing the problems Möschel describes in his book.
The conversation concludes with a discussion of possible solutions to counter the risks previously discussed. Möschel proposes requiring at least a legal education — something lacking not only in France but surprisingly also at the U.S. Supreme Court — as well as setting a certain level of age and experience, implementing mixed nomination systems, and amending the rules on abstention and recusal, which are problematic not only in Italy but also in France and Germany. Such changes, Möschel argues, would help strengthen the courts as fundamental institutions in the protection of democracy and the rule of law — the central goal of his book.
The conversation was conducted by Konstantin Kipp. Lilit Hakobyan edited the audio file.
