In almost every public discussion, the fragility of Romanian democracy is a recurring subject. This concern has become even more pressing during the current period of political uncertainty, where the rise of far-right parties is often blamed on traditional political forces that have distanced themselves from the needs and concerns of the people. While I agree that this explanation holds some truth, I believe it is only part of the picture.
A deeper issue lies in the inability of democratic institutions to build the resilience needed to safeguard democracy. I believe this failure partly originates from their gradual withdrawal from a vital role: engaging with and educating citizens about the values, principles, and benefits of democratic governance. When democratic institutions fail to engage with the public and foster trust, they leave a void that can be exploited by extreme ideologies and political movements.
This article revisits an essential but often overlooked topic: the legitimacy of constitutional courts and their critical role in ensuring the resilience of democracy. In a rapidly changing world, where societal trends and political dynamics evolve unpredictably, understanding the impact of constitutional courts on public trust and democratic stability is more important than ever.
The Constitutional Court of Romania has faced criticism for its recent decision to exclude a candidate from the presidential race. What the Court did might be correct, but it could also be flawed. I do not aim to criticize the outcome reached by the Court; rather, I want to highlight that, at no point in its decision, did the Court make an effort to convince citizens of the legal validity of its ruling within a system rooted in constitutional democracy. Instead, it justified the validity of its decision primarily by appealing to the pursuit of public interest.
This approach may or may not be appropriate. However, with this decision, the Court has alienated itself from the public, who viewed its ruling as interference in the political sphere and even as a restriction on voters’ choices.
If I take a foresight perspective, this practice could challenge the fundamental legitimacy of a constitutional court in the near future. But what do I mean by a foresight perspective? Foresight is about looking ahead, identifying emerging signals, and preparing for uncertainties. It is a skill rooted in anticipation rather than mere analysis. Foresight enables us to explore plausible futures and navigate uncertainties, not to predict one inevitable outcome, but to prepare for a range of possibilities.
We no longer live in the era of Hans Kelsen; the modern world faces new and unpredictable signals that we cannot yet fully understand or anticipate. Society evolves, and this evolution cannot be stopped. Likewise, the rise of far-right or far-left parties cannot be entirely prevented. What remains uncertain is how these movements will shape the modern world, especially when authoritarian politicians today have access to far more tools and resources than in the past.
From this perspective, constitutional courts must work harder than ever to strengthen their legitimacy. Controversial decisions, even when supported by solid reasoning, risk facing strong public opposition if they are not well-justified and fail to resonate with citizens. Building legitimacy requires not only a commitment to a strong legal foundation grounded in constitutional provisions but also a dedication to transparency and public trust.
Legitimacy is perceived to be the major source of power of constitutional courts. Consequently, legitimacy has been the subject of decades of scholarly attention. Most of the work focuses on the question of whether the court’s legitimacy suffers when it releases unpopular decisions.[1]
Whether constitutional drafters assign constitutional courts explicitly to the judiciary or distinguish them as independent “watchdogs” is of secondary importance. Legitimacy does not depend on the formal classification of the body tasked with constitutional oversight. What truly matters is that the competencies of constitutional courts and the effects of their decisions are clearly and firmly established in constitutional and sub-constitutional texts.[2]
Everyone agrees that the job a constitutional court is to interpret the constitution. However, if a court uses ambiguous reasoning to invalidate a political act, politicians may argue that the court’s interpretation is flawed, driven not by law but by subjective preferences, and may assert that they, rather than the judges, are the true defenders of the constitution.[3]
Can constitutional court decisions influence public opinion on government policies? The answer is yes, and it works in both directions: courts can legitimize a policy they support or de-legitimize one they oppose. However, this influence depends heavily on the court’s institutional legitimacy and the trust it commands among citizens.
Findings show that courts with strong public support can shift public opinion at both a collective and individual level. Even citizens with opposing initial views may change their stance if they have high trust in the court. This demonstrates that courts with higher legitimacy can significantly shape public opinion on policies, whether by conferring or withdrawing legitimacy.[4]
For example, the German Constitutional Court demonstrates a notable ability to influence public opinion by endorsing or rejecting public policies. Its decisions can even sway individuals with strong pre-existing attitudes on the issue, a phenomenon attributed to the court’s broad institutional support.
In contrast, the French Constitutional Council shows a much weaker ability to confer legitimacy. While there is some movement in public opinion aligned with its decisions, the effect is not significant. The difference lies in trust: in both France and Germany, the court’s influence is primarily driven by individuals who have high trust in the court. However, Germany has a far larger proportion of citizens with strong trust in their court compared to France.[5]
Legitimacy is a vital source of power for constitutional courts, allowing them to shape public opinion and lend credibility to public policies through their rulings. While much attention is often given to how citizens’ agreement or disagreement with decisions affects trust in courts, it is equally important to consider how court decisions influence public opinion. Courts, as highly trusted institutions in many democracies, have the unique ability to legitimize or delegitimize government policies through what can be described as their “endorsement effect.”
This capacity stems from their role as guardians of constitutional democracy, positioned to interpret and enforce foundational principles. Courts with strong public trust can leverage their legitimacy to build support for or against policies, influencing democratic debates and shaping societal norms. However, this legitimacy is not equally distributed; long-established courts tend to enjoy higher public confidence compared to newer courts, which may struggle to build institutional trust or secure widespread support for their decisions.
From a foresight perspective, the ability of courts to maintain and adapt their legitimacy is critical. As societies face new challenges, such as the rise of extreme political movements or unprecedented policy dilemmas, constitutional courts must anticipate the evolving expectations of citizens. Courts that fail to align their decisions with transparent reasoning and democratic ideals risk eroding their legitimacy.
However, this approach raises its own challenges. Democratic ideals can often be ambiguous, leaving open questions about what they require in specific contexts, such as freedom of expression or equality. Moreover, a constitutional court cannot operate in isolation; it is inherently influenced and constrained by the political forces surrounding it. These constraints shape its ability to deliver justice and uphold legitimacy.
This highlights a critical point: understanding constitutional justice requires more than exploring democratic ideals and legal interpretation. Scholars have highlighted the need to consider the practical limitations that constitutional courts encounter in the real world. As human actors, judges must contend with reputational risks, job security, and even personal safety, all of which can shape their decisions. Therefore, any theory of constitutional legitimacy must bridge the principles of democracy and legal interpretation with the practical realities and constraints of judicial practice.[6]
However, emerging trends in political life increasingly demand that these limitations not hinder the ability of constitutional courts to act decisively.
In this context, constitutional courts derive their legitimacy from being perceived as the sole credible interpreters of the constitution. This legitimacy, rooted in broad public trust, allows them to shape public opinion and align it with their rulings. Yet, this legitimacy-conferring capacity is not equally distributed. As societies face evolving political challenges, courts must find ways to overcome these disparities, ensuring they remain resilient and capable of safeguarding democratic principles.
Individuals do not form their opinions in isolation. Instead, they rely on pre-existing attitudes that may influence whether they support or oppose a policy. It is widely recognized that people often use their party identification as a heuristic to shape their preferences.
A constitutional court has all the necessary tools to influence public opinion through its decisions. However, it cannot achieve this if it distances itself from popular legitimacy. Therefore, court decisions should aim to persuade and build broader citizen support. Only in this way can a constitutional court contribute to the resilience of democracy. Unfortunately, the Romanian Constitutional Court, along with certain jurists, appears reluctant to adapt to the evolving realities of the modern world. They seem to operate under the assumption that democracy can endure unchanged, as it did 35 years ago, despite the significant transformations and emerging trends reshaping societies today.
Neglecting the legitimacy of constitutional court decisions cannot have any positive effect on democracy in a foresight perspective. Instead, it risks anchoring the court in an outdated framework disconnected from current realities. The current reality should be viewed as an opportunity for constitutional courts to reassess and strengthen their popular legitimacy. Without such efforts, the trajectory of today’s emerging trends remains highly uncertain.
[1] S. Sternberg, S. Brouard, C. Hönnige, The legitimacy-conferring capacity of constitutional courts: Evidence from a comparative survey experiment, European Journal of Political Research 61: 973–996, 2022.
[2] W. Babeck, A. Weber, Writing Constitutions, Vol. 1 Institutions, 2022, p. 343.
[3] C. Sunstein, The Legitimacy of Constitutional Courts: Notes on Theory and Practice Feature: Questioning Constitutional Justice: Introduction, 6 East European Constitutional Review 61 (1997).
[4] S. Sternberg, S. Brouard, C. Hönnige, op cit.
[5] Idem.
[6] C. Sunstein, op. cit.
Av. drd. Larisa-Cătălina Ionescu
