Constitutional courts operate under a framework of formal and informal rules. While formal rules have been extensively studied, our understanding of informal rules remains limited. Courts often rely on internal practices, traditions and unwritten customs developed over time, posing a significant challenge due to their hidden nature. Numerous constitutional courts lack detailed voting protocols in their statutes and internal regulations, leaving essential aspects to the court's discretion, such as, inter alia, the voting order, deliberation style, outcome versus issue voting and tie-breaking protocols. By employing a case study of strategic breaching of informal voting protocols in the Mexican Supreme Court, this article highlights the complexity of enforcing informal voting rules given that external actors may be unaware of them, along with other factors. Even when informal rules are broadly known, certain circumstances may diminish the efficacy of informal sanctions addressing their breach. Thus, key judicial players, such as chief justices or judge-rapporteurs, may take advantage of the informal rules of voting protocols to advance their policy preferences.

The COVID-19 pandemic has made it clear that even when using trusted legal tools, courts may run into challenging problems. Governments reacted to an unprecedented (at least in the context of post-WW2 era of fundamental rights) global crisis by adopting measures that drastically limited fundamental rights in order to protect the lives and health of many. Courts, of course, were entrusted with protecting fundamental rights against governmental overreach. The question was, how strict should the courts be when reviewing governmental acts. On the one hand, they could have relied on substantive proportionality assessment. This option, however was virtually ignored and most courts have opted for a deferential approach. This article analyzes both of these approaches, their strengths and weaknesses, but ultimately it argues that a third option - semiprocedural review - is the best way out of this judicial conundrum. Relying on comparative as well as theoretical arguments, it argues that semiprocedural review is the best way to deal with challenging empirical question - even under conditions of epistemological uncertainty.

This article offers a reconstruction and assessment of the emerging rebellion of European constitutional courts against the exceptionless supremacy of European Union (EU) law. It presents the ontological theories of supremacy and how the Court of Justice of the EU (CJEU) overcame the first two major challenges of its history: the existential challenge of canonizing the general doctrine of supremacy and the Solange challenge of national fundamental rights. It provides an account of the emerging ultra vires challenge, including its root cause and evolvement, and provides an assessment and sets out proposals. The article demonstrates that the crux of the matter is not the primacy of EU law but the interpretive primacy of the CJEU. It argues that the rebellion was triggered by the perception that the CJEU case law features a declining normative and an increasing policy character. The debate about the CJEU's evolutionary interpretation, in a certain sense, parallels US constitutional law's debate between originalism and the living constitution, with the difference that the EU is a pluralist legal order.

The minority question has long been a hot topic in Central and Eastern Europe. Whereas most CEE countries guarantee the privileged position of the dominant nation, they also recognize the existence of national minorities and provide special rights for them. Hence there is an apparent contradiction between the values of the nation-states: unity and diversity. This article proposes that to resolve this contradiction, it is necessary to define the concept, scope and limitations of group-specific minority rights, as well as their relationship with other human rights and the nation-state. Constitutional courts are appropriate candidates for this task. However, based on our analysis of the relevant constitutional jurisprudence of five CEE countries – Croatia, Hungary, Romania, Serbia, and Slovenia – it seems that constitutional courts in the region have failed to properly conceptualize minority rights. Instead of developing appropriate tests for assessing the constitutionality of legal regulations, they have only superficially touched upon the conceptual issues of minority rights, using incidental, case-by-case arguments to justify the (un)constitutionality of the legal provisions. Therefore, this article also attempts to outline a constitutionality test that may be suitable for constitutional courts to consistently evaluate submissions that challenge the constitutionality of laws on minority rights.

This Article interrogates the role of national constitutional courts within the Article 267 TFEU preliminary reference mechanism from both descriptive and normative angles. First, I demonstrate that although a clear majority of the constitutional courts submit references to the ECJ on a more frequent basis, differences in individual approaches remain significant. Subsequently, I argue that the core normative attractivity of the questions submitted in the course of domestic constitutional review lies in their participative and deliberative potential. Compared to ordinary courts, constitutional courts are better suited to amplify the ‘unheard’ voices of immobile EU citizens. By counterbalancing the demands of the EU's functional constitution, which is primarily based on the ideals of market capitalism, constitutional courts’ questions may contribute to the EU's capacity to generate legitimate decisions. Finally, I put my theoretical claims in context and analyse the main ways in which such deliberative potential can translate into practice.

This article provides a comparative analysis of how courts have performed judicial review on supermajority rules governing courts’ decision-making. Through an empirical approach, covering the cases of the United States, Peru and Poland, the article argues that the supermajority’s legal source and the chronology of its establishment may influence the court’s ability to review such rules and the case’s outcome. Finally, the article addresses the paradox of whether courts must apply the very provision they are tasked to review.

The Article deals with the actual functioning of the judicial power and the limits of its independence facing an illiberal or authoritarian state. The Article offers a skeptical analysis of the past and especially of the judiciary’s future in Central Europe, with a primary focus on Czechia and Slovakia. After a brief excursion into the times before the installment of communist regimes in the late 1940s, attention shifts to the development of the judiciary during the three decades after the fall of communist rule. In this context, the Article deals with different models of administration of the judiciary and shows how they can function in normal democracy and under the conditions of emerging authoritarianism. It also characterizes different perspectives on the judiciary in common law and continental law and posits different capacities of judges to resist authoritarians in various legal cultures. Finally, it sketches future prospects and attempts to define the typology of judiciary models in authoritarian and totalitarian states.