The purpose of this paper is to strengthen the connection between the normative ends and the empirical analysis within the realm of democratic research on courts. This paper argues in favor of dissenting opinions on normative grounds and sketches out a research design to give some empirical evidence whether this argument is also valid on empirical grounds. As for the normative perspective, arguments in favor of dissenting opinions usually have a ‘deliberative’ flavor in the sense that dissenting opinions strengthen the clarity and/or quality of the court’s decision-making. This paper takes a different route and picks up on a more ‘republican’ approach with the notion of ‘integration via conflict’. This paper is interested in the public perception of the court, especially during times of heavy public criticism that is often reflected by dissenting opinions. It will make use of a data set on public perception of the German Constitutional Court in the first fifty years since its enactment
The paper investigates three phases in the activity of the Hungarian Constitutional Court through an analysis of dissenting opinions in politically relevant cases. Dissenting opinions reveal judicial behavior which, according to the attitudinal model, might be linked to the political position of the parties that nominated the judges. Beyond examining individual decision-making, the article applies network-analysis to identify whether patterns in dissenting opinions might be differentiated according to political positions and a left-right partition. According to our findings, political blocs did not emerge and become dominant after 2010; rather, this phenomenon was already present during the second phase of the Court (1999–2010) as the judges could be differentiated along the political positions they adopted in their dissenting opinions. During the third phase (2010–2018), the network of judges proved to be less polarized, and a separation between old and new judges also emerged.
This paper will demonstrate how and why different legal systems, national and transnational, limit judicial dissent in order to, inter alia, prevent the expression of judicial ideology through the requirement of unanimous, sometimes even anonymous judicial decisions. We will we argue that a normative choice in favor of concealing judicial ideology is not just a political, institutional choice, it is also informed by a deeper, underlying conceptual understanding of law. In conclusion, it will be, hence, suggested that on the basis of the theoretical and practical attitudes toward dissenting opinions and the judicial ideology that they conceal or reveal three different conceptions of law can be identified: the objectivist, the discursive and the subjectivist conception.
The paper will use a rich dataset from the Slovenian Constitutional Court to analyze when and why judges disagree or try to reach consensus. The dataset includes a full voting record of 27 judges that composed the Court in three different periods. Explanatory variables include professional background and career history of judges, their age and gender, political orientation of the parliamentary majority that appointed the judge, and revealed ideology of the judge based on a content analysis of a sample of his or her votes and separate opinions. For a sample of decisions, the variables on whether the court's ruling was in line or in disagreement with the legislative/executive opinion on the matter, and the extent to which the decision referred to international law, will also be taken into account.