Weak Judicial Review in European Constitutional Courts

The presentation explores several strategies through which European constitutional courts defer issues to the legislature and soften the authority of their rulings. Through these trends of weak judicial review, the judges take into account “the preferences and choices of other actors and the institutional context in which they act.” Through these strategies, courts promote incremental approaches to some of the most important and controversial social and political issues facing the respective countries without jeopardizing their own status. By way of gradations of constitutional defects, judges can open different avenues of influence on the legislature and illuminate the nuances of judicial power. These levels of constitutionality provide flexibility to the judicial work and encourage courts to work with other political actors. They provide judges more institutional space to shape nuanced rulings and to address difficult and divisive social issues through judicial incrementalism.