¿Constrained¿ Constitutional Courts as Conduits for Democratic Consolidation

Many constitutional courts, particularly in Central and Eastern Europe, have more power than the "constrained court" model of judicial decisionmaking suggests because they operate in an increasingly international environment. By analyzing the Estonian Supreme Court's adjudication of minority linguistic rights, we show how even a new court can act as a "conduit" for democratic reform by identifying for legislators national constitutional paths along which domestically disliked but internationally defined democratic reforms can be pursued, preserving national integrity while acknowledging international reality. International pressures, while constraining courts, thus can free them from national constraints while allowing them to imprint their own vision. Constitutional courts in the consolidating democracies of post-Communist Europe face a daunting task. They "must do what U.S. Chief John Marshall is credited with having done: transform public policy disputes into questions of constitutional interpretation that can be decided by texts, procedures, principles, and rules that are generally accepted as legal and not political" (Schwartz 2000:5). Other studies echo this endorsement of the critical role of the judiciary in the transition to democracy (Stotzky 1993), a role which depends heavily on court decisions, even unpopular ones, being accepted, because courts are viewed as appropriate institutions for making such decisions, and a "commitment to procedure and process trumps concerns over outcomes" (Gibson & Caldeira 2003:2). Yet studies of judiciaries in consolidating democracies argue that such courts operate in an environment of national political constraints that compromise their own institutional legitimacy and decisional efficacy (Vanberg 1998; Epstein, Knight, & Shvetsova 2001). If even the highly respected U.S. Supreme Court can only offer a "hollow hope" of bringing about social change (Rosenberg 1991), we might expect that the constraints faced by the newly established constitutional courts of Central and Eastern Europe would render them largely ineffective in legitimizing controversial public policy. In contradistinction to such a "constrained court" view, we argue that the case of the Constitutional Review Chamber (CRC) of the Republic of Estonia suggests that courts in the consolidating democracies of post-Communist Europe are able to loosen their national political constraints and act as "conduits" for significant democratic reform-even when their own institutional legitimacy is not well-established. Our assertion is that constitutional adjudication by these "constrained" courts can "channel legislative initiative down [particular] paths" and "reconstitute the choice contexts in which legislative decision making takes place" (Stone Sweet 1998:337) and thus help facilitate democratic consolidation. We suggest that this occurs when the constitutional court negotiates a national space for policymaking that is consonant with recognized but still resented and resisted international constraints on national political actors. In negotiating this space, through constitutional adjudication, the court's decision making serves both nationally defined interests of democratic governance and the judicial goal of securing judicial institutional authority. "By stamping [its] constitutional imprimatur" on controversial, national legislation made under conditions of international influence, the constitutional court settles political conflict (Gibson & Caldeira 2003:5) over the legislative policy in a national way. Our findings regarding the decisionmaking by one constitutional court in a consolidating democracy over a nationally controversial area of legal policy-the Estonian Supreme Court's adjudication of minority linguistic rights-illustrate that a court can act as a conduit for significant democratic reform. We choose this metaphorical concept to convey the idea of a (judicial) device that allows a substance (reformative policy) to pass, facilitating or affecting the nature of its passage. …