Interpretive formalism, impoverished rights review, and constitutional amendments before the Romanian Constitutional Court

This paper argues that the style of judicial reasoning and the judicial culture prevalent in CEE courts makes a feminist judgments project for the region both especially relevant and particularly challenging. These courts often do not perceive themselves as discursive courts (i.e. do not see their audience as being also the general public to whom to justify their reasoning) and produce judgments that are dry and couched in the language of applying objective norms rather than solving complex conflicts. The paper takes as its case study the Romanian Constitutional Court’s 2016 decision validating a citizens’ initiative on the constitutional definition of the family. Even while paying lip service to various theories of judicial interpretation and to international human rights law, the judgment illustrates the limits of formalistic legal reasoning, an impoverished rights review culture, and insufficient dialogic engagement with other constitutional and supranational actors.