Abstract:
How can constitutional courts minimize disappointment when making decisions that will inevitably disappoint? To answer this question, we need to look at the expectations that such courts generate. Constitutional courts idealize themselves by inspiring expectations of stability and impartiality. If courts appear dysfunctional in this regard, these expectations are replaced by impressions of irreversibility and partiality. Constitutional courts minimize disappointment by creating the appearance of impartiality. Citizens are more likely to accept a disappointing decision if they are given the impression that it was made by a neutral party. This impression is important because the decisions of constitutional courts are usually final. They mark the end of political conflicts without definitively resolving them for society. The latter is particularly problematic because the decision is thus also removed from the democratic majority. The decisions of the supreme courts are not revisable in the same way as the decisions of the legislative chambers. In fact, there is no conflict between constitutional courts and parliaments because courts always outmaneuver parliaments in this regard.
In this way, they not only jeopardize their own legitimacy but also an important function of elections: making disappointments bearable so that those who are disappointed still participate in the democratic process. Elections do this by conveying to the disappointed the expectation that unpleasant laws can be reversed through the act of voting. This makes electoral defeat or disappointment less severe, because it creates an expectation that things could be different in the future. However, constitutional courts can undermine this expectation by making overly restrictive decisions. When considering constitutional courts not only as legal but also as political actors, it is evident that their actions have implications not only for their own legitimacy but also for the stability of the system as a whole.
About the speaker:
Mounir Zahran is a visiting PhD student affiliated with Freie Universität Berlin and Humboldt Universität zu Berlin. His research focuses on how democratic institutions work to mitigate citizens’ disappointment. His main areas of interest are democratic theory, constitutional theory, liberal theory and thought, and German intellectual thought in the 1950s-1980s.