Balkinization: Constitutionalism and the Discontents of Judicial Power

Constitutionalism and the Discontents of Judicial Power

Guest Blogger

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

Fernanda G. Nicola

Mark Tushnet and Bojan Bugaric begin Constitutionalism and Its Discontents with an elegant paradox: constitutionalism simultaneously empowers democratic self-government and limits the exercise of democratic power. More provocatively, constraining power in the name of freedom may itself expand power. This serves as useful point of departure for a book that asks us not simply whether constitutionalism works, but whether some of the pathologies we associate with contemporary constitutional democracy are generated by constitutionalism itself.

The title’s invocation of Freud is especially on point. In Civilization and Its Discontents, civilization responds to human vulnerability, our bodily frailty, the hostility of the natural world, and the difficulties of social relations through cultural and social restraints that become sources of dissatisfaction. Yet we cannot simply abandon civilization to escape those constraints because those same constraints make collective life possible. The answer is not to eliminate discontent but to find a way to live with it.

Something similar occurs in constitutionalism. Constitutions constrain political power in the name of freedom, but those constraints necessarily create or enlarge power somewhere else: in courts, lawyers, constitutional designers, administrative institutions, or past political majorities whose choices become entrenched against present ones. Constitutionalism is therefore caught between empowering democratic self-government and limiting the exercise of that very power.

This recalls another famous set of discontents, liberalism’s persistent difficulty in reconciling individual liberty with equality. Ronald Dworkin’s famous response in Liberalism and its Discontents was to deepen constitutional interpretation through a moral reading of the Constitution. Boldly, Tushnet and Bugaric travel in an almost opposite direction. Instead of asking constitutional law to resolve fundamental political disagreements, they invite us to scale down our expectations of constitutionalism and defend a thinner, predominantly procedural version of it. And perhaps, they suggest, constitutionalism’s paradox can be loosened not simply by making constitutionalism thinner, but by making it more political.

The Judicial Review Paradox

Judicial review provides perhaps the clearest illustration. Courts embody precisely the paradox that Tushnet and Bugaric diagnose. Judicial review limits governmental power, but it simultaneously transfers enormous authority to judges and high courts so that “constitutional rights do not appear to be better protected in countries with independent courts equipped with the power of judicial review. The main reason behind this paradox is the fact that the enforcement of rights ultimately falls on citizens themselves.” (p. 268)

This is not merely the familiar counter majoritarian difficulty. The expansion of judicial review can transform political disagreement into legal debate, making important questions of equality, distribution, executive authority, immigration, or democratic participation subject to constitutional interpretation in the courts. Lawyers and judges thereby acquire a privileged position in deciding conflicts that originate outside law and cannot be addressed through law alone or without broader social and political mobilization.

Tushnet and Bugaric resist the constitutionalist instinct that answers every failure of politics with additional constitutional law. But the contemporary authoritarian challenge makes the problem considerably more complicated. If strengthening courts can weaken democratic self-government, weakening some courts can also strengthen authoritarian power.

When Authoritarians Attack Courts

Tushnet and Bugaric’s paradox of constitutionalism becomes particularly acute when courts themselves come under authoritarian attack. In my own work comparing the U.S. and the EU, I distinguish among three forms of attack: personal, institutional, and attacks through ideology. Personal attacks delegitimize judges, institutional attacks alter appointments, discipline, jurisdiction, or remedies, while attacks through ideology aim to contest the legitimacy of judicial constraints themselves. All three undermine the authority of courts to operate as checks on political power.

Poland provides perhaps the clearest European example. Beginning in 2015, the Law and Justice (PiS) government portrayed judges as a privileged elite obstructing democratic will. Personal attacks were followed by disciplinary mechanisms, restructuring of the National Council of the Judiciary, and the so called “muzzle law,” which subjected judges to disciplinary proceedings for questioning judicial appointments or criticizing government reforms.

Constitutional identity, national sovereignty, and democratic self-determination became arguments for resisting European judicial supervision and contesting judicial constraints on political majorities. Concepts designed to preserve constitutional pluralism transformed from shields protecting national autonomy into swords directed against the institutions capable of constraining political power. Ideology here redeploys legal and constitutional ideals with genuine normative force to legitimate an illiberal and undemocratic allocation of political power.

The U.S. presents a parallel, although institutionally different, development. An increasingly expansive version of unitary executive theory portrays judicial and administrative constraints as illegitimate impediments to presidential authority. Courts themselves can participate in this redistribution of power, as judicial doctrines dismantling constraints on presidential removal power strengthen executive authority rather than restrain it. Constitutional stemming from the Supreme Court participate in constructing and legitimizing authoritarian allocations of power.

Here, Tushnet and Bugaric’s paradox helps us rethink not only whether taming authoritarian power might expand constitutional power, but its inverse: does weakening constitutional constraints expand authoritarian power? That question makes it difficult to either embrace judicial supremacy, as a safeguard against authoritarianism, or simply to celebrate its retreat.
Courts Cannot Save Democracy

Contemporary critiques of judicial review exercised by apex courts contain an important element of truth. Courts rarely defeat authoritarian populism on their own. Judicial victories may be partial, delayed, circumvented, or politically fragile. Governments can adapt to adverse decisions and even use them to reinforce a populist narrative in which unelected judges obstruct the democratic will of ordinary citizens. At best, judicial review may slow, complicate, and occasionally reverse processes of democratic erosion while creating political and institutional space for broader resistance.

But the lesson cannot be that judicial independence is dispensable.

Authoritarian governments themselves demonstrate why. They expend considerable political capital restructuring judicial appointments, disciplining judges, limiting remedies, intimidating lawyers, and contesting the binding force of judicial decisions precisely because independent courts can constrain their power. Moreover, attacks on judicial independence frequently occur alongside attacks on civil society, universities, independent media, local governments, and the legal profession. The target is not simply the judiciary, but the network of institutions capable of imposing limits on concentrated political power.

This suggests a more modest, but no less important, understanding of judicial power. Courts do not save democracy. They can, however, preserve the institutional space within which democratic politics can continue. Independent courts can protect individuals and associations from immediate abuses of executive power, preserve avenues for political opposition, enforce procedural constraints, sustain domestic and transnational mobilization, and buy time for democratic resistance. Their victories may be incremental and temporary, but those victories can preserve the conditions under which political resistance and eventual democratic reconstruction remain possible.

This is why I resist both the romanticization of judicial review and its wholesale rejection. Judicial independence is a necessary but insufficient condition for constitutional democracy. Courts matter not because judges possess some superior capacity to resolve political disagreement, but because they form one component of a democratic ecosystem.

From Ordinary Politics to Constitutional Politics

Returning political and social questions from courts to legislatures does not itself democratize the conditions under which those questions are decided. The alternative to juristocracy, therefore, cannot simply be majoritarianism. Nor should the alternative to constitutional law be politics understood only as electoral competition.

What Tushnet and Bugaric argue for instead is constitutional politics, an understanding of constitutional democracy as sustained through interactions among courts, political parties, legislatures, social movements, advocates, journalists, local governments, civil society organizations, and citizens. Their turn toward constitutional politics is enormously attractive because it challenges the tendency of constitutional lawyers to imagine that constitutional problems necessarily require constitutional law solutions. It reconnects constitutional change with political parties, social movements, civil society, and democratic mobilization, rather than treating courts as the principal engines of political transformation. But constitutional politics is not an innocent or neutral space. It is structured by inequalities of wealth, political organization, access, information, and voice, inequalities into which the authors do not delve sufficiently. Moving constitutional questions away from courts and into politics does not make these inequalities disappear. It may simply relocate the struggle over constitutional power.

But the authors suggest a slightly different response to constitutionalism’s discontents. Perhaps the goal should not be to discover the optimal amount of constitutional politics or the proper balance between law and politics in the abstract. The more important question is how constitutional power is distributed across a democratic ecosystem in concrete cases. Constitutional politics, on this account, is less about identifying the institution entitled to have the final word than about sustaining the institutional and social conditions under which constitutional meaning remains open to contestation.

Freud did not promise civilization without discontent. Tushnet and Bugaric do not promise constitutionalism without its paradoxes. Their achievement is instead to make us suspicious of the recurring constitutionalist fantasy that the failures of democratic politics can be solved simply by adding more constitutional law. If the paradox cannot be solved, constitutional politics may at least allow us to live with it.

Fernanda G. Nicola is a Professor at American University Washington College of Law, and she can be reached at fnicola@american.edu.

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