When 5×4 is not a winning majority: judicial decision-making on unconstitutional constitutional amendments

The main democratic critiques on the strong judicial review tend to disregard the constitutional amendment as a mechanism to mitigate judicial supremacy. For political constitutionalism, supermajority rules do not offer equal treatment, as this rule favors the maintenance of the status quo by making changes more difficult to occur. Underlying this assertion is the belief political equality depends on a decision-making process in which all opinions have the same value, through simple majority. However, both constitutional courts and constitutional amendments are part of the vast majority of contemporary democratic societies. We start from this context to demonstrate how judicial review can be reconnected with the democratic potential of constitutional amendments. The use of supermajority rules in the deliberation of the constitutional courts, unlike what happens in parliaments, serves to make a decision to reject the amendment more difficult, bearing in mind its democratic status.