Courting constitutional crises: crisis mitigation by constitutional courts as democratic institutions

Abstract Constitutional crises are typically considered as among the most profound crisis type, shaking political regime foundations and posing a challenge for democratic futures. This article critically engages with the concept of ‘constitutional crises’, highlighting how the difficulties with determining clear criteria for their occurrence may undermine democracy by non-democratic partisan elites creating a sense of existential threat that necessitates the transfer of more state power to them. Recognizing this ambiguity of ‘constitutional crises’, the article studies how constitutional courts (including supreme courts in non-centralized judicial review systems) responsible for ‘guarding constitutions’ possess constitutional crisis-mitigating potential and thereby may contribute to democratic governance. Via identification of gaps in existing scholarship, the factors affecting constitutional court performance in crisis mitigation—formal powers, independence, empirical legitimacy and role orientation—are identified, with constitutional court agency shaping the institution’s choices trumping potential constraints stemming from competence restrictions. Constitutional courts can signal when the vague concept of ‘constitutional crisis’ is invoked merely as a pretext for power concentration and when constitutional crisis discourse does not justify departing from democratic procedures, thus helping depolarization and encouraging deliberation over political decisions. The potential and limits of constitutional courts as constitutional crises-mitigators is illustrated via examples from the Visegrad region where post-2010 de-democratization has been rampant and accelerated by the COVID-19 pandemic.