Within the last two decades, the number of democratizing countries has dropped from forty-three to fourteen, while autocratizing of regimes has occurred in forty-two states containing 43% of the world’s population—compared to thirteen states in 2002.Footnote 1 This threat is disheartening, but there have always been waves of democratization and de-democratization.Footnote 2 The current wave of de-democratization differs from past waves in several respects.3Footnote 3 First, aspiring autocrats have increasingly come to power through democratic elections and have dismantled democracy from within via legal reforms, rather than through coups d‘état.Footnote 4 Second, today’s autocrats try to maintain a democratic façade by undermining democracy gradually. Finally, due to the widespread use of social media, would-be autocrats can easily disseminate disinformation among the people, which increases polarization and the risk of manipulating the voters. Some would-be autocrats, or their wealthy donors,Footnote 5 even own traditional media and thus they can exercise the pressure on their opponents even more relentlessly.
Once autocrats come to power, they realize sooner or later that the apex courts stand in their way, as they can block attempts to change the current regime and delegitimize their rule. They know that the judges of these courts were appointed by their predecessors, and do not usually share their views. Therefore, they inevitably start considering how to bring the apex courts under control. They can wait until they have the chance to appoint their own judges. But that might take decades. “Judicial time” and “political time” are simply not aligned.Footnote 6 Autocrats are not usually that patient, and thus they often decide to resort to court–packingFootnote 7 or to slash the competences of the apex courtsFootnote 8 in order to immunize their policies from judicial review. In Leonard Cohen’s words, everybody knows that the dice are loaded against apex courts.
To be sure, apex courts are not powerless. They can engage in judicial resistance,Footnote 9 build coalitions domestically as well as on the supranational level, and accommodate the new challenges in their activities.Footnote 10 They can creatively interpret the constitutional text to meet new challenges, for instance by interpreting the rights under their protection to require specific democratic structures,Footnote 11 or foster the soft guardrails of constitutionalism to ensure mutual toleration and institutional forbearance between the judiciary and political branches.Footnote 12 Nevertheless, the judicial branch has turned out to be surprisingly weak once the struggle became real.Footnote 13 It is thus increasingly accepted that judges cannot successfully fight democratic decline alone. Judicial resistance to democratic decay thus requires allies. But in order to build robust and reliable alliances judges need to enjoy trust among various audiences, not only among other legal professions. Therefore, judges need to actively build public trust in the courts with all segments of the society, including the ordinary people.Footnote 14
The traditional answer to how to build public trust in the courts was to render independent and impartial decisions, because courts speak only through their written opinions. In fact, it is a mantra of European supranational bodies that public confidence in the judiciary and judicial independence go hand in hand and reinforce each other.Footnote 15 However, recent experimental empirical research has questioned this positive correlation between judicial independence and public trust in courts. The relation between these values is far more complicated, and court-curbing can in fact find support among the people, either because political preferences beat the importance of judicial independenceFootnote 16 or because court-curbing responds to the low public trust in courts.Footnote 17 This is not, in fact, surprising, as autocrats often have electoral support, and their voters might give them a green light to pursue autocratic judicial reform.Footnote 18 This means that autocratic judicial reforms curtailing judicial independence do not necessarily reduce public trust in the courts, at least in some segments of society.Footnote 19 The existing empirical studies suggests that this might be due to at least three factors—the role of education, the role of the media, and the role of political preferences.Footnote 20
While these three factors are important, we still do not have a crystal clear picture of how public trust in the judiciary is formed, and how it interacts court-curbing strategies adopted by autocrats. This Article suggests that the fourth important factor that should be taken into account in assessing the relation between public trust in the courts and judicial independence is court communication, both on-bench and off-bench, with all segments of the society.
More specifically, the key argument of this Article is two-fold. First, we live in the disinformation age and European apex courts can easily be portrayed as detached from the ordinary people, or “the precariat.” This, in my opinion, endangers their social embeddedness, which in turn might increase the likelihood of the acceptance of court-curbing. Second, I argue that European apex courts cannot be passive and “only” render impartial decisions to respond to this challenge. They must show that apex courts can be useful for ordinary people also via other means. They also need to preemptively dispel the myth that courts are elitist and show that what makes them elites is elite qualifications, not the elite background. Therefore, they need to proactively respond to the danger of being portrayed as detached from the precariat by adopting embedding strategies aimed at all segments of society, and not only at the, legal, elites. This Article then identifies four such strategies, both judicial and non-judicial, that European apex courts can employ. It does so by building on the insights from the recent literatureFootnote 21 and interviews with judges, politicians and journalists.Footnote 22 These four embedding strategies include: (1) The media strategy; (2) proactive engagement with the precariat via “reaching out” activities such as social events and holding hearings outside the courts’ seats; (3) minimalization of controversial off-the-bench activities of judges; and (4) self-awareness and avoidance of structural judicial bias.
One important caveat must be added here. While the proposed embedding strategies might also work in other parts of the world, this Article intentionally focuses on such strategies for European apex courts, by which I mean apex courts in the EU member states. The main reason for this is that these courts have some unique features—they operate in relatively stable political systems, they are under the supervision of both the ECtHR and the CJEU, they have far greater resources than their counterparts in the Global South, they have a well-developed infrastructure and are well connected to the Internet, etcetera—as well as unique problems compared to courts in other parts of the world. Similarly, the proposed embedding strategies may apply also to supranational courts, but these courts face different challenges, operate under different constraintsFootnote 23 and speak to different audiences.Footnote 24 Of course, even within the EU member states there is some variation as the dynamics and causes of the growing gap between apex courts and the citizen masses in post-communist countries in Central and Eastern Europe (CEE) differ in part from those in Western Europe.Footnote 25 One may thus conclude that this Article is primarily about embedding strategies for European apex courts and their special relevance for CEE.
This Article proceeds as follows. Section A discusses the complicated relationship between public trust in the courts and judicial independence in the era of growing polarization. Section B demonstrates that European apex courts can easily be portrayed as institutions that are detached from the needs of ordinary people. Section C identifies four embedding strategies that these courts can employ in order to regain public trust from among the precariat and make more sense to them. Section D discusses the risks and limits which courts and judges face when they engage in these embedding strategies. Section E concludes.
A. Polarization, Judicial Independence, Public Trust in the Courts and Their Social Embeddedness
Trust in justice is an important public good for any government as a source of compliance with the law,Footnote 26 social control,Footnote 27 and economic efficiency.Footnote 28 Many comparative studies have confirmed the positive relationship between judicial independence and trust, showing that individuals have greater confidence in the judicial system where de facto judicial independence is higher.Footnote 29 Both supranational courts in Europe, the European Court of Justice as well as the European Court of Human Rights, have also accepted this positive relationship between public confidence and judicial independence in their case law.Footnote 30 Most of the abovementioned studies used the static designs though. They focused on particular points in time, which does not allow the effects of increased or decreased judicial independence in particular contexts to be estimated. This means that such studies could not assess the impact of court-packing or any other court-curbing judicial reform on the citizens’ trust in the judicial system.
However, a new emerging literature shows that threats to judicial independence and court–curbing policies are not opposed, and are even occasionally welcomed, by certain significant segments of public opinion.Footnote 31 As a result, studies assuming that the curbing of courts is always met by a negative reaction from voters are too simplistic and do not seem to capture current political reality.Footnote 32 More specifically, the recent studies have shown that the relation between judicial independence and public trust may be more complicated due to at least three factors—the role of education, the role of the media, and the role of political preferences.Footnote 33
First, regarding the role of education, several studies show that trust in the courts is explained by interactions between institutional features and variables capturing education or awareness. For instance, Garoupa and Magalhães found that in Europe the relationship between properties such as de facto judicial independence, accountability, and trust in the judicial system is moderated by education.Footnote 34 Similar claims have been made regarding the relationship between judicial independence and public trust in other parts of the world. Wenzel et al. detected that, in the United States, levels of public confidence in state courts are related to judicial selection methods only by the most educated citizens.Footnote 35 Education plays a role in public trust in the courts also in in Latin America, as a recent study has shown that the institutional quality of legal systems is related to public trust in the courts only among the better educated.Footnote 36 In sum, there is mounting evidence that whatever the effect that undermining judicial independence in some European countries may have had on the public’s trust in the courts, that effect may have been moderated by education.Footnote 37
Second, regarding the role of the media, several studies have revealed that media consumption is positively associated with confidence in legal authorities.Footnote 38 The role of the media is particularly important regarding awareness and knowledge of the judiciary, because most people do not have direct or indirect experience of the courts, and hence the majority of citizens use the media as their main source of information about the judiciary.Footnote 39 Moreover, the media also influence the people’s perception of the judiciary as they evaluate the courts and compare them with other political institutions on a daily basis. Therefore, it is particularly important for judges to shape the narratives about what the courts do.
The third potential moderating or mediating variable for the relation between public trust in the courts and judicial independence concerns citizens’ political preferences. Trust in the courts is a holistic judgement about institutional performanceFootnote 40 and responds not only to procedural changes but also to the extent to which the courts’ composition and their decisions are aligned with citizens’ ideological and political preferences.Footnote 41 Individuals thus seem to be more tolerant of proposed reforms that limit the courts’ independence whenever those are pushed by parties they happen to support.Footnote 42 A new experimental literature, based on hypotheticals, has actually shown the limited willingness of voters to punish their preferred parties or candidates whenever they endorse measures that violate important democratic principles.Footnote 43
More recently, Magalhães & Garoupa, who analyzed how assaults on judicial independence by populist governments in Turkey, Hungary, and Poland affected public trust in the courts, found that, while court-curbing has an adverse effect on public trust in the courts, this effect is much clearer among citizens who are ideologically distant from their governments.Footnote 44 They hence confirmed the above-mentioned experimental evidence indicating how citizens tolerate democratic backsliding—that is, for many, trust in the judicial system can subsist even when the courts are made politically subservient.Footnote 45 In fact, in some countries, such as Hungary, they showed that while those most distant from the government withdrew confidence from the judicial system as a result of court-curbing, the attack on judicial independence carried out by the Fidesz government actually increased trust in the courts among those ideologically closest to the government.Footnote 46 In sum, the impact of actual court–curbing measures on the trustworthiness of the judicial system may also depend on voters’ political preferences, particularly their affinity with the governments that implemented those measures. As stressed already in the introduction, this is not, in fact, surprising, as autocrats often have electoral support. If the politicians pushing for court-curbing manage to persuade their voters that the incumbent judges were not independent, they can make the voters think that after court-curbing the courts will finally be independent or at least more independent.
Nevertheless, these three factors—education, the media, and political preferences—however important, do not capture the complexity of construing public trust in courts. Building on the insights from the recent literatureFootnote 47 and interviews with judges, politicians and journalists,Footnote 48 this Article suggests that the fourth important factor that should be taken into account in assessing the relation between public trust in the courts and judicial independence is court communication, broadly speaking, both on-bench and off-bench.Footnote 49 In Part B it shows that European apex courts can easily be portrayed as detached from the precariat, by which this Article means the citizen with average education who knows less about the functioning of courts and politics, and lacks the social and financial capital of the elites. Then in Part C it explains why the courts’ communication with the public matters and why it is important for the European apex courts to communicate with all segments of society, that is with both the elites and the precariat. This is a normative claim. Subsequently, Part D analyzes four communication strategies that apex courts can use to communicate with the precariat. Importantly, it is necessary to reiterate that this Article does not make causal claims. It is for others to test empirically to what extent and under what circumstances court communication operates as a moderating or mediating variable for the relationship between public trust in the courts and judicial independence. This Article only puts forth an argument that court communication may enhance public trust in the courts.
B. Why Can European Apex Courts Easily Be Portrayed as Detached from the Precariat?
European apex courts and their judges have traditionally belonged to the elite. Just look at the German Imperial Court of Justice in Leipzig and the grandeur of the ballroom that spans almost the entire floor of this majestic building, which served as part of the living quarters of the first Imperial Court President, Eduard von Simson. The Appellate Committee of the House of Lords used to deliver its judgments in the House of Lords Chamber. The building of the French Conseil d’État in Paris is also telling. Many of these courts were derived from advisory bodies to kings. Their judges have inevitably occupied the top of the social tree. Newly established specialized constitutional courts do not share these historical legacies, but they too were built as elite institutions.
To be sure, there is nothing wrong with apex courts’ judges belonging to the elite. They should be drawn from the crème de la crème of the legal profession and act as exemplary citizens. The problem is that apex courts can easily be portrayed as detached from the ordinary people, protecting mainly their own interests or those of their social class,Footnote 50 and deciding issues that ordinary people rarely care about or benefit from. In other words, apex courts are in danger of being portrayed and perceived as elitist institutions.
In order to understand why courts that are portrayed as elitist may find little support among the people—such support being indispensable for successful judicial resistance against democratic backsliding—it is crucial to realize that the type of polarization of Western societies has changed. The traditional left vs. right division no longer exists in many countries as it does not reflect the social landscape anymore. Guy Standing has persuasively argued that the economies that sustained traditional class divisions, which resulted in political competition between the Left and the Right, have been replaced by economies that sustain a tiny globalized elite on the backs of a large, locally bound precariat.Footnote 51 Socio-economic division has remained, but it is not determined by the Left vs. the Right dichotomy. Sometimes the new axis is portrayed as a new populism vs anti-populism divide.Footnote 52 Others call the GAL-TAN dimension, which distinguishes parties on socio-cultural issues, from green, alternative, libertarianism (GAL) to traditionalism, authoritarianism and nationalism (TAN).Footnote 53 But the labels are not important here. What matters is that the new divide has become central to political contestation, supplanting the traditional competition between parties of the left and right.
This division is further reinforced by the increasing divide between cosmopolitans/globalists on the one hand and nationalists/localists on the other. As Scheppele showed, “cosmopolitans/globalists have a different set of political interests than the nationalists/localists — and the traditional parties are being torn apart by the fact that there are cosmopolitans and nationalists, globalists and localists within the mainstream parties of both Left and Right.”Footnote 54 Most traditional parties that have been built around a Left/Right continuum have not been able to respond to this shift to a global/local axisFootnote 55—or elites/Precariat axis—and, as a result, have been imploding or collapsing.Footnote 56 This increasing divide between the cosmopolitans/globalists and the nationalists/localists has contributed to the greater polarization of many societies,Footnote 57 due to divergent opinions on tackling climate change and poverty.Footnote 58 If courts side with the cosmopolitans/globalists, without taking into account the views and needs of the nationalists/localists, they can again be portrayed as detached from the precariat.
Have apex courts been able to cope with this challenge? And will they be so in the future? Some of the European constitutional courts are entering this battle with their hands tied. The prototypical Kelsenian courts, featuring only abstract review, such as those in BulgariaFootnote 59 and the Baltic States,Footnote 60 are detached from individuals due to their design, as ordinary citizens have no direct access to them. Would-be autocrats can thus easily claim that only the corrupt political elites have access to these courts, and hence the Kelsenian constitutional courts are able to advance their agendas. Moreover, the specialized court without individual complaint can be perceived as a part of state apparatus. Its individual justices can easily be portrayed as living in “ivory towers” and solving abstract problems that do not affect the ordinary people—in the better scenario—or as serving the interests of the corrupt elites and protecting their perks—in the worse scenario.
However, even those constitutional courts that do have concrete constitutional review and/or an individual constitutional complaint mechanism can still be portrayed as inaccessible to ordinary people. Regarding the concrete constitutional review it is easy as this review can be triggered only by ordinary court judges, who can still be seen as detached from the precariat. As for the individual constitutional complaints procedure, one should not forget that in many European countries it is severely limited. For instance, in Slovakia an individual constitutional complaint can be made against only a decision of the ordinary court, but not against the executive action that gave rise to it.Footnote 61 In Poland, an individual constitutional complaint can be lodged only if the law applied by the ordinary court is deemed unconstitutional.Footnote 62 This again severely restricts the people’s access to the constitutional court. If the people cannot have access to it, they do not feel that the constitutional court is of much use to them. That was the often forgotten legitimacy problem of the Polish Constitutional Court in the pre-Kaczinski era.Footnote 63 It simply had little support among the people because it was viewed as a political court that primarily decided the big political issues and did not address the grievances of individuals and undo wrongs suffered by then.
It is no surprise that the Federal German Constitutional Court has been referred to as a “popular court” because it is open to the complaints of all citizens who feel that their constitutional rights have been violated.Footnote 64 In a similar vein, the former President of Federal German Constitutional Court Andreas Vosskuhle has pointed out that “[t]his proximity to citizens’ everyday life is the foundation of Germans’ evident trust in the Federal Constitutional Court.”Footnote 65 Similarly, the Czech Constitutional Court, with a full-fledged individual constitutional complaint mechanism with no access restrictions, has the greatest popular support among those of the CEE countries. Unlike its Polish counterpart, it has simply helped quite a few ordinary people to find justice and hence has been consequential not only for the elites, but also for the precariat. Constitutional scholars often lament that it provides individualized justice that does not make sense on the systemic level. but this case law increases the visibility of the Czech Constitutional Court among the ordinary people and the Court is viewed, at least sometimes, as an ally that can help them.
Therefore, many European constitutional courts can easily be portrayed as detached from the ordinary people due to their design. Unlike in Latin America, there is no amparo-likeFootnote 66 or tutela-likeFootnote 67 procedure that would be easily accessible by ordinary citizens. The amparo and acción de tutela are, roughly, legal procedures that allow individuals immediately to claim their “fundamental” constitutional rights before any judge in the country without requiring the services of a lawyer. Therefore, even the less wealthy and less educated can resort to these procedures. Whitney Taylor recently showed that acción de tutela and what it offers are key to understanding how the Colombian people socially support their Constitutional Court and how acción de tutela contributed to social embeddedness of the Colombian Constitutional Court.Footnote 68
In contrast, in Europe, compulsory legal representation, short time limits for lodging individual constitutional complaints, creative interpretation of the admissibility criteria by constitutional courts that allows them to exercise de facto docket control, registries “sifting” incoming cases, and the cost of lawyers able to litigate cases successfully before the constitutional court pose significant barriers to embeddedness. Supreme courts fare better regarding access, but they too resort to docket control by stealth, and bringing a successful claim before them is by no means cheaper or easier than to succeed before constitutional tribunals.
But European constitutional and supreme courts also face the challenge of being portrayed as detached from the ordinary people regarding the cases they choose to decide on the merits, those they choose to medialize, and, of course, the way they decide cases on the merits. This is not just about whether to protect negative rights or enforce positive obligations and compel governments and legislatures to act. It matters what positive action is required from the state.
In this sense, climate change litigation is, at least in CEE,Footnote 69 perceived as action triggered by cosmopolitans/globalists that has far-reaching negative economic repercussions for the precariat—higher energy costs, higher costs of housing that meets the environmental standards, increased spending by municipalities on the environmental impact assessment that takes money away from other areas, the near impossibility of building new highways and big infrastructure projects. To be sure, not taking climate action also has costs for the precariat and not all climate litigation is triggered by globalists. For instance, climate litigation in Germany, Portugal and Spain is also initiated by farmers who belong to the precariat.
Nevertheless, it is clear that climate policy is simply not neutral as regards social inequalities: Measures such as renewable infrastructure siting, sunsetting industries, and fuel taxes can be highly regressive.Footnote 70 Governments need significant fiscal capacity to invest in infrastructure to support an energy transition and this money can be taken from somewhere else, at least in the short term. Energy crises come at a price, especially at the expense of expansive social and economic rights valued by the precariat.Footnote 71 Governments thus also need to communicate the costs of not taking climate action and the long-term effects of such inaction to all segments of society. Climate change simply “threatens us all, but not all equally or equally soon.”Footnote 72
Climate-change litigation challenges traditional societal expectations as well, as it limits the use of fields and forests and fuels to the precariat’s distrust of the unknown—wind power plants that change the countryside. It also runs counter to the interests of many people who have gotten used to their big cars with high emissions and love riding four-wheeled terrain motorbikes down forest paths. They wanted to enjoy freedom and be independent from the community and the State. That is what CEE people aspired to when they joined the Western-style democracies, and later the European Union. For many of them that was about liberty, and not about solidarity and sustainability. In this sense, CEE has not reached the same point of development as the West. The fact that water is not, yet, scarce in CEE, unlike in Southern Europe, makes the climate change issue less pressing, at least for older generations.
Of course, the precariat in post-communist CEE is not entirely opposed to positive obligations and the welfare state. To the contrary, to use Susanne Baer’s fundamental rights triangle of “dignity, liberty, and equality,”Footnote 73 the precariat cares not only about liberty, but also about equalityFootnote 74 and dignity. But the CEE precariat wants to provoke governments and legislatures into action in more “old-fashioned” areas such as addressing poverty, the provision of high-quality healthcare, good and accessible public schools for all, good roads and cheap public transport, decent pensions, support for families with children, high security, which means a strict migration policy, the right to remain offline, the right to—to resist the mandatory digitalization of certain aspects of our lives, and the right to pay in cash. Yet the CEE apex courts are usually deferential in these areas that are dear to the precariat. Cosmopolitans/globalists can easily remedy the faltering welfare state or just the passive state by sending their children to private schools, signing up for private health-care plans, and moving to safer neighborhoods with good infrastructure, but the nationalists/localists are locked in their places of origin due to their lower socio-economic status.
The same logic applies even more forcefully in structural litigation concerning the separation of powers, the rule of law, and judicial independence. These issues are abstract and too detached from the precariat. Members of the precariat do not turn to the courts to solve their problems, none of their relatives has ever been a judge, so why should they care about judicial independence? They have also experienced many instances of unlawfulness, but they do not have the resources, time, acumen, and social capital to challenge police misconduct and the illegal actions of wealthy businessmen and other private actors who often exploit their weak societal status.
All of these institutional, structural, and decision-making features of the European apex courts can easily be exploited by would-be autocrats who can portray these courts as increasingly detached from the precariat. As a result, the precariat may no longer view these courts as “their” courts, but rather as “elitist” courts serving the needs of only certain social classes. As was shown by the empirical studies discussed in Part A, this may in turn reduce public trust in apex courts in certain segments of society and make them more vulnerable to autocratic attacks. Therefore, the apex courts should find ways of communicating with the precariat. The next section shows how they can do so.
C. Four Embedding Strategies: How Can European Apex Courts Improve Their Communication with the Precariat?
This Article argues that if European apex courts want to find a way of talking to the precariat, they should care not only about their legal but also about their social embeddedness.Footnote 75 While this Article cannot provide an exhaustive list of these embedding strategies, it proposes four broad areas on which these courts can focus without changing the constitution: (1) The media strategy of apex courts; (2) proactive engagement with the precariat via “reaching out” activities such as social events and holding hearings outside the courts’ seats; (3) minimalization of controversial off-the-bench activities of judges; and (4) self-awareness and avoidance of structural judicial bias.
These strategies include both on- and off-the-bench activities of judges. Importantly, this Article understands communication by judges broadly, as it assumes that judges communicate with the precariat not only through words, but also through their actions. To be sure, these four embedding strategies aim at both the elites and the precariat. Nevertheless, they are particularly important for reaching out to the precariat, because it is the precariat that is less resistant to disinformation and twisted social media narratives. The precariat is also arguably less interested in the judiciary than well-educated elites and thus apex courts must be more proactive and come closer by holding hearings outside their traditional seats and start visiting schools and other events in the peripheries. The same applies to controversial off-the-bench activities of judges and self-awareness of structural judicial bias. While well-educated elites surely do not want judges to engage in controversial activities, it is the precariat that is more upset when already well-paid judges receive luxurious gifts or extra remuneration. Finally, apex court judges naturally belong to the elites, which may share the same structural biases and thus it is naturally more lenient to remedy such bias.
The first strategy is the media strategy of apex courts, as regards both traditional and social media. There is a tension between what judges write and what people read. Therefore, someone has to translate judicial rulings into plain language for the people. The media are key intermediaries between courts and the ordinary peopleFootnote 76 and the way in which they portray the judiciary may significantly affect public narrative about judges, which in turn shapes public trust in the courts. One may even say that in the era of disinformation and growing polarization, the media are more important than the sword or the purse. Therefore, apex courts should be proactive in shaping their public image and communicating with ordinary people both through traditional media as well as directly via their own channels and social media. That requires a professional press corps that is able to translate complex legal issues decided by the apex courts into plain language understandable by ordinary people or at least non-lawyers. The work of this press corps extends beyond producing traditional press releases and is transformed into full-fledged “judicial public relations.”Footnote 77 Some courts have even adopted preemptive measures to monitor disinformation campaigns and established a “Rapid Response Team” to address incidents of disinformation targeting a judicial branch individual, a court, or a court system.Footnote 78
Moreover, some of the old-fashioned methods of communication have become increasingly opaque and criticized as elitist. A typical example is the relationship between the German Federal Constitutional Court and the Justizpressekonferenz,Footnote 79 a registered association of journalists with privileged access to new decisions of the German Federal Constitutional Court. An informal practise, followed for decades, gave only those journalists organized in the Justizpressekonferenz Footnote 80 access to the Court’s judgment on the day before it was promulgated. That practice was supposed to ensure the “high–quality and accurate reporting” necessary in a democratic society.Footnote 81 However, the lack of transparency of this informal practise and the selective access to information were increasingly challenged, both by some journalists and several political parties—the AfD, the Die Linke, and the FDP—as a confidentiality cartel creating discrimination among journalists.Footnote 82 As a result, this practise was eventually abandoned.Footnote 83 Interestingly, the Canadian Supreme Court also adopted press “lock-ups” in which reporters are allowed to review the opinions in a case, under secure conditions, before the opinions are officially released to the public,Footnote 84 but this practice has not caused the same controversy as in Germany.Footnote 85
In a similar vein, it is suspicious that the Czech Constitutional Court boasts about its transparency and operates a user-friendly search engine that includes all judgments and decisions of the Czech Constitutional Court except for decisions of its disciplinary chamber concerning misconduct of its constitutional justices.Footnote 86 This can easily be misinterpreted as an attempt to hide something. None of the Czech journalists have picked up this topic so far, but it can be easily exploited to delegitimize the Czech Constitutional Court.
In the meantime, new communication methods have come to the fore. Several apex courts have started communicating through Facebook and X, formerly Twitter. The European Court of Justice has been particularly proactive in developing its public relations toolbox and reaching various audiences also through Youtube and Instagram.Footnote 87 The German Federal Constitutional Court has opened official Twitter and Instagram accounts, which allow the Court to communicate directly with the public.Footnote 88 It also shot a documentary movie about its work,Footnote 89 which is also a move forward, but it is probably too long and complicated to reach out to the precariat. The Polish short movie about the crackdown on Polish courts called “W 180 sekund wokół bezprawia” produced by organization Wolne Sądy (Free Courts) is then a great example of how to catch the attention of ordinary people.Footnote 90 No court, to my knowledge, has come close to the current Marshal of the Polish Sejm (Marszałek Sejmu), Szymon Hołownia, who managed to attract over one million followers to the Sejm’s Youtube channel. While it might currently be considered a stretch, courts may also prepare podcasts about their judges and their work, as well as decisions. Other platforms might also become relevant in reaching out to the younger members of the precariat, especially if politicians have been actively using this social medium.Footnote 91
This is not to say that apex court hearings should turn into public spectacles. Some courts are even barred by law from engaging in social media communication. But we should perhaps reconsider what is appropriate for an apex court in the 2020s. Televised hearings of a court, if done well, can significantly increase the court’s reputation even in times of political crisis. This was, for instance, the case with the Israeli Supreme Court, which televised its hearing on the judicial reform case in 2023, as everybody could see that the judges did a very good job there. It is perhaps a heretical thought in German legal culture, but some CEE apex courts would benefit from broadcasting the deliberations of judges, as we know, for instance, from the supreme courts in Brazil,Footnote 92 MexicoFootnote 93 and Switzerland.Footnote 94 Such public scrutiny would hold judges accountable to the people and dissuade political leaders from appointing weak lawyers to these courts whose major asset is loyalty to the ruling political party. Maybe broadcasting the deliberation of judges is a step too far. However, even broadcasting the proceedings can make the public understand the judicial process. Even ordinary people can get from broadcasting that judges acted neutrally and with propriety, treated parties fairly and were well-prepared.
As a minimum, judges should realize that the media are an important intermediary through which information flows to the public, including the precariat. And who determines the media narratives about the courts—through agenda setting, gatekeeping or framing—also influences the public perception of courts and eventually also public trust. It is alarming that in some jurisdictions the majority of apex court judges still do not realize the power of the media and are not aware that they might need them. For instance, in Czechia several justices of Constitutional Court Justices seek to minimize or even avoid public and media exposure.Footnote 95 By refusing interactions with the media they vacate the public space and risk, in the best case, distortions of their decisions by lay journalists, and in the worst case, manipulations of their decisions by would-be autocrats.Footnote 96 They seem to lack judicial awareness that a proactive stance with respect to the media is particularly needed to protect the perceived legitimacy of the judiciary at a time when public debate over the proper role of the courts is especially heated and polarized. However, even the Supreme Court of the United States has been criticized for little concern for the changing needs of the press and steadfastly rejecting any suggestion that it should make its work more accessible to the people.Footnote 97 All of this is happening in the era when the Supreme Court has become a focal point for partisan battles, threatening to undermine public trust in the Court’s independence.Footnote 98 That said, the media strategy of apex courts should reflect the given judicial culture, as in each country there are different expectations how courts and judges should behave.Footnote 99
The second strategy is to proactively communicate with the precariat by getting closer to them and to make them feel that they are welcome at the court. These “reaching out” activities, which are distinct from the media strategy, might range from school visits to holding open days at the apex courts when ordinary citizens can visit the buildings and meet with the judges. The annual hosting of an open-door celebration at the Supreme Court on Canada Day, introduced by Chief Justice McLachlin, is a prime example.Footnote 100 An annual moot court for primary and secondary school pupils from all over the country held at the premises of the Czech Constitutional Court and presided over by the constitutional justices themselves,Footnote 101 illustrates another way of bringing the apex court closer to the ordinary people.Footnote 102 Similarly, the Belgian Constitutional Court has organized a high school competition.Footnote 103 At the peak of attacks on judges in Slovakia and Poland, these judges even gave public lectures and organized moot courts on rock festivals.Footnote 104
This ambassadorial role of apex court judges might sometimes even nudge judges into leaving their judicial buildings, traveling across the country, and occasionally holding hearings in non-traditional sites. For instance, the Supreme Court of the United Kingdom, whose permanent home is in central London, has recently sat also in Edinburgh, Cardiff, Belfast, and Manchester.Footnote 105 The supreme courts in other Commonwealth countries have followed that lead. For instance, the Supreme Court of Ireland and the Supreme Court of Canada also traveled around the country and held hearings outside their seats. The Supreme Court of Ireland, with its seat in Dublin, heard cases and engaged in outreach with local legal, history-minded, and academic communities in Cork, Limerick, Galway, Waterford, and Kilkenny.Footnote 106 The Supreme Court of Canada, with its seat in Ottawa, also decided to “ride circuit” and has held hearings and engaged with members of the public, students, and local officials and bar associations in Winnipeg and Quebec.Footnote 107 One may say that we can see the revival of the old-fashioned American tradition of circuit-riding,Footnote 108 long abandoned in the United States.Footnote 109 Another option that the increasing number of apex courts utilize is to stream their hearings, which makes their work accessible to an even greater number of people as it overcomes the capacity constraints of court buildings and logistical quandaries.Footnote 110
Some apex courts engage with the public also through activities that are not tied to their main function, which is adjudicating disputes. A relatively recent development is the creation of exhibitions or court museums that expose members of the public to significant developments in the court’s history or their nation’s past.Footnote 111 Such museums exist at the Supreme Courts of India, Kenya, and Malaysia.Footnote 112 A good example of embedding activity is the Italian Constitutional Court, which has begun to undertake yearly “voyages through Italy (Viaggio in Italia).”Footnote 113 During these voyages, the participating judges aim to explain Italian constitutional values and the need for their judicial protection among specific segments of society, including prisoners and school students.Footnote 114 All three Czech apex courts take part in the annual “Night of Law (Noc práva),” in which lectures and entertainment are provided until the wee hours.Footnote 115 The Supreme Court of the United Kingdom runs its own gift shop where it sells its merchandise.Footnote 116 To be sure, this is not to say that all apex courts should engage in all of these reaching-out activities. The success of these activities is context-dependent and each court should adjust this embedding strategy to its own judicial culture and broader political and societal environment.
Not only courts, but also individual judges, can proactively reach out to the public to spread awareness about them and the constitutional system more generally. For instance, Sandra Day O’Connor created iCivics just after retiring from the bench. It is an initiative that makes civic education lively and interesting in video game format, including several games dealing with Supreme Court and bill of rights.Footnote 117 These activities are trickier for sitting judges though as they might clash with judicial propriety. One potential way of avoiding this judicial impropriety is to create such initiatives only after retirement—such as Sandra Day O’Connor—or carefully develop such program under the auspices of judicial associations that in some countries play an increasingly important role in embedding courts within the society.Footnote 118 One may counter that the precariat does not care about these “reaching out” activities, but there is growing empirical support that the civic education by judges can shape public perceptions of apex courts.Footnote 119
The third strategy is to reduce to a minimum any controversial off-the-bench activities of judges. The golden rule for apex court judges is “do not act like someone to whom rules do not apply.” For instance, suspicious trips and lavish vacations on private yachts taken by some U.S. Supreme Court Associate JusticesFootnote 120 and paid for by wealthy moguls not surprisingly caused public uproarFootnote 121 and eventually led in 2023 to the new Code of Conduct for Justices of the Supreme Court of the United States.Footnote 122 This Code of Conduct is wholly self-enforcing though, and thus depends to a great extent on its interpretation by the Justices themselves.Footnote 123 Nevertheless, it attests to the growing concern about the informal activities of judges in their free time.
Some extrajudicial activities, considered acceptable in the past, have also become increasingly controversial. In several countries, some apex court judges charge high rates for private lectures and earn excessive additional income from lecturing—sometimes even more than their judicial salaries. This of course raises concerns not only because of high rates, but also because of collusion with wealthy law firms and businesses who can afford such speakers. In other countries, judges can act as arbitrators, which again raises concerns regarding their impartiality and proximity to big businesses. A recent empirical study showed that big law firms were more likely to win cases before the Italian Council of State when those cases were presided over by judges with prior arbitration experience.Footnote 124 This finding hence supports the conclusion that out-of-court monetary rewards influence related in-court judicial behavior.Footnote 125 All of these highly remunerated “additional activities” of judges understandably attract negative attention within the precariat which has trouble making ends meet. Sometimes even literary activities may arise suspicion that judges lend the prestige of the judicial office to advance their private interests, if judges sign thousands of books in Supreme Court offices and use their court staff to promote their books.Footnote 126 Moreover, paid extrajudicial activity may endanger judicial impartialityFootnote 127 and require recusal of the impugned judges—for instance, in cases tied to the publisher.Footnote 128
The revolving door phenomenon, that is judges travelling between branches,Footnote 129 prompts an additional legitimacy challenge as it can be perceived by the precariat as rent-seeking and self-dealingFootnote 130 among the elites. Once considered acceptable and even contributing to the joint enterprise of governance,Footnote 131 assigning judges to ministries of justice may negatively affect perceived judicial independence, may lead to personal corruption—if being assigned to the Ministry of Justice is a part of the quid-pro-quo deal to hasten the assigned judge’s promotion after his spell at the Ministry—and damages the image of the judiciary as an apolitical branch.
Such concerns are even greater if judges enter partisan politics and then return to the judiciary. This was the case with the Spanish investigative judge, Baltasar Garzón Real, who issued the arrest warrant against Pinochet, as he had briefly been a member of the Spanish Parliament in 1993 and Secretary of State in Filipe Gonzalez’s government in 1994 before returning to the bench.Footnote 132 The Slovakian judge Štefan Harabin had even been President of the Supreme Court from 1998–2003 before becoming the Deputy Prime Minister and then Minister of Justice in Robert Fico’s first government from 2006–2009, after which he was re-elected as President of the Supreme Court between 2009 and 2014.Footnote 133 Likewise, some German judges were lawfully elected to the German Bundestag as MPs. However their return to the bench was criticized by reason of their far-right convictions. In other words, if individual judges seek to parlay into political careers for reasons of personal empowerment, like the abovementioned former President of the Slovak Supreme CourtFootnote 134 as well as some judges in BrazilFootnote 135 and Italy,Footnote 136 that will likely backfire against the judiciary and divorce it even further from the precariat.
Of course, the most deleterious and reprehensible mode of conduct is judicial corruption, which has both on-the-bench and off-the-bench dimensions that are often intertwined. While Western judiciaries, with rare exceptions, have been spared this phenomenon, some CEE judiciaries suffer from widespread corruption. For instance, the Albanian judiciary was so venal that the government had to resort to vetting judges, a process which was eventually found acceptable even by the European Court of Human Rights.Footnote 137 Romanian and Bulgarian judiciaries have also struggled with venal judges at all levels and the anti-corruption fight has become a hot political issue.Footnote 138 The same applies to Georgia.Footnote 139 More recently, the Slovak judiciary witnessed a huge corruption scandal which also implicated judges of the Slovak Supreme Court, including the acting President, and justices of the Slovak Constitutional Court.Footnote 140 To counter these unfortunate developments, a good anti-corruption strategy vis-à-vis both political and judicial corruption that leads to institutional rather than individual empowerment may bolster judicial legitimacy.Footnote 141 If apex court judges want to maintain their legitimacy in the eyes of the precariat, they must thus avoid at all costs not only judicial corruption but also professional solidarity when dealing with the judicial corruption of their colleagues.
Finally, this is seemingly counterintuitive, but what judges do once they leave the bench matters too. Life terms for judges are increasingly rare and life expectancy is much longer than it used to be. Therefore, many judges who have reached the compulsory retirement age—or the end of the term of a constitutional justice—can still be active in other than the judicial role. Yet, when they return to the Bar, former judges have an unfair advantage over other barristers.Footnote 142 Again, landing a well-paid job immediately after the end of a judicial career raises the suspicions of the precariat. Big corporations can be willing to pay astronomical sums to retired judges for their insider knowledge or in order to improve the corporations’ public image, a sort of corporate “reputation washing.” This may in turn affect or can be perceived to affect the decision-making of such apex court judges towards the end of their terms, because of the need to solicit good post-retirement offers and engage in rent-seeking. Several high-profile moves by retired judges have raised eyebrows in the United Kingdom,Footnote 143 Austria,Footnote 144 and Germany,Footnote 145 even if they have not yet amounted to a structural problem akin to that relating to post-retirement jobs for judges in India.Footnote 146
Of course, this matter is not simple. The choice of a former judge’s professional career after retirement can be seen as a part of the freedom to practice a profession, which can be curtailed only proportionally. If anything, a mandatory “cooling-off” period, such as the one applicable in Austria where a six-month sabbatical is prescribed for retired judges and state attorneys before they can start new careers in the private sector, should be considered. A similar cooling-off period has also been written into the ethical standards of the German Constitutional Court since 2017, because some former members seemed to monetize the insider knowledge they had gathered in office, and in doing so negatively influenced public confidence in the neutrality of the court.Footnote 147
The fourth strategy is self-awareness and the avoidance of structural judicial bias. We all know that it is important not only what decisions the apex courts reach, but also how they reach them. Various “judicial statecraft” techniquesFootnote 148 and the development of a “responsive judicial voice”Footnote 149 have been exhaustively discussed elsewhere. But responsive judges should also be aware of their own potential judicial bias. Judges belong to a particular social class, and they should know that what sounds irrational to them may well be rational behavior for members of the precariat. They should also care about the precariat’s problems.
The Windrush scandal in the 2010s and the more recent British Post Office scandal in the United Kingdom illustrate this problem.Footnote 150 The literature records numerous other examples of judicial bias. In fact, the judiciary may be uncritical of the current government, business thinking, or the Police even without being put under undue pressure for reasons of conformismFootnote 151 or judicial apoliticism.Footnote 152 The problem is that the precariat feels the judicial bias more deeply, as corporations and police officers know with whom they are dealing. They know that the precariat will be unlikely to challenge their actions because challenge is costly, and if they do it is likely that courts will not trust their version of events. To recall Leonard Cohen yet again, the dice are loaded against the precariat.
Looking at the flip side, the activist case law of several CEE constitutional courts on judicial salaries that interpreted the constitutional principle of judicial independence as prohibiting almost any reduction in or freezing of judicial salaries, even in times of financial or energy crisis, has caused outrage among the precariat. It has created a sense that judges care primarily about their own salaries—via a creative interpretation of judicial independence that has no support even in the case law of the European Court of JusticeFootnote 153 and the European Court of Human RightsFootnote 154—while slashing the pensions of the precariat conforms with the constitution. In the newspeak of comparative constitutionalists it is judicial self-dealingFootnote 155 at its worst. As mentioned above, climate-change litigation can also be exploited in order to portray judges as detached from the ordinary people, at least in some parts of Europe, especially in CEE, because the precariat cares more about traditional values than about the protection of the environment. It wants its pensions, healthcare, schooling, infrastructure, and cheap food, and considers the positive obligations concerning climate change as imposing additional costs which only the elites can bear.
There are, of course, other strategies that can bring apex courts closer to the people and reduce the likelihood that would-be autocrats can successfully portray them as elitist. We all know that judicial buildings matter. This is perhaps most visible in New Zealand, if one compares the old colonial building of the High Court in Wellington with the adjacent new Supreme Court complex, which is environmentally friendly, open to the public, and inspired by the New Zealand heritage. Even tiny details such as attire can matter. Fancy judicial robes and wigs look increasingly out of touch with the expectations of society in the twenty-first century. Sometimes even the seemingly innocent proximity of apex court judges to politicians can raise suspicions within the precariat. A typical example is the “Merkel dinners,” during which the leadership of the German Federal Constitutional Court met members of the government for dinners at the invitation of Chancellor Angela Merkel, all of which took place at times when several important cases concerning government policy were pending before the Court.Footnote 156 These dinners were exploited by the political opposition to accuse the judges of colluding with the government.
D. Risks and Limits of Judicial Engagement in Embedding Strategies
Adopting the abovementioned embedding strategies is not without its risks or limits. One important objection is that re-connecting the courts with the people and re-thinking judicial statecraft and judicial ethics as a way of making courts more resilient to democratic backsliding may carry risks creating “populist judges.”Footnote 157 In other words, by engaging in extra-judicial communication and other embedding strategies apex courts risk turning away from an emphasis on expertise in order to satisfy public sentiments.Footnote 158 This may in turn affect the institutional legitimacy of these courts. Second, some of the four embedding strategies, depending on the judicial culture, can clash with judicial propriety.Footnote 159 Third, embedding strategies can endanger the principle of the separation of powers.Footnote 160 Fourth, a range of practical limitations may emerge as some of the proposed embedding strategies require significant resources.Footnote 161 Fifth, as Maartje de Visser observed in the related context of constitutional literacy,Footnote 162 we must be aware that “there may also be a lack of interest among segments of the general public to look to the courts to realize a boost in their constitutional awareness.”Footnote 163 Sixth, several embedding strategies can be hijacked and abused by anti-liberal courts.Footnote 164 Finally, there is a risk of the race to the bottom. If we simplify certain issues too much, it may in the long-term reduce the attentiveness of courts’ audiences to the details necessary for the proper understanding of the disputes before the courts.
I agree that these dangers should not be underestimated, but most scholars agree that the pros of judges’ engagement in non-judicial activities, if exercised carefully, outdo the cons.Footnote 165 Sometimes such engagement is even necessary, as otherwise judges would fight the would-be autocrats with their hands tied. The times have changed, and judges need to adapt to the new environment. As Grabenwarter stressed more than a decade ago:
In modern society, the publication of decisions in official collections of judgments or in law journals is still important; but it is not decisive for the overall perception of the performance of a court. Long before these publications appear, there is a public debate in the media on the content of decisions, its reasoning and its consequences.Footnote 166
The situation has, though, worsened since then. The new communications environment centered around social media platforms has played into the hands of populist actors by enabling them to broadcast unfiltered and uncontextualized attacks on individual justices and judicial institutions. A recent empirical study shows that populist leaders use this delegitimization strategy against judges via social media in both old and new EU member states as well as in the United Kingdom.Footnote 167 Another study showed a similar autocratic delegitimization strategy in Mexico.Footnote 168 Despite this phenomenon, existing research has often underappreciated that institutional reforms are only a final and dramatic step in a long process that begins with populist efforts to delegitimize judicial actors in their communication to undermine public trust in the courts and prepare the ground for eventual institutional reform.Footnote 169
One may thus say that modern judicial rhetoric raises the “second countermajoritarian difficulty.”Footnote 170 However, if courts and judges fail to adapt to the new media environment and do not behave proactively and strategically, they might leave the playing field for the populist leaders who can without restraint inculcate the “narrative of blame” within particular segments of the public, the precariat. This will in turn erode their institutional legitimacy. In other words, if courts do not forge relations with the public, they are likely to lose in the long term. Apart from necessity, embedding strategies are beneficial to the courts in many respects. They may increase the constitutional literacy of the public.Footnote 171 By engaging in embedding strategies courts and judges are also able to “diversif[y] [the] markets in which reputation is built.”Footnote 172 The embryonic literature on the extrajudicial activities of judges in Latin AmericaFootnote 173 and Southeast AsiaFootnote 174 suggests that it would be prudent for the apex courts to leverage non-adjudicatory approaches strategically to cultivate a solid relationship with the latter to strengthen judicial legitimacy and garner support in response to, or in anticipation of, executive encroachment and political backlash.
When it comes to specific objections to courts’ and judges’ engagement in embedding strategies, if courts and judges act wisely and incrementallyFootnote 175 and respect domestic traditions and judicial culture,Footnote 176 they should be able to, at least minimize, the abovementioned risks. More specifically, the danger of becoming populist judges, as mentioned above, is less than of them passively witnessing their delegitimization by populist leaders, losing institutional legitimacy, and preparing the ground for an eventual institutional reform detrimental to judicial independence and the rule of law. Regarding judicial propriety, apart from fine-tuning the embedding strategies to a particular judicial culture, good practise is to regulate judges’ non-judicial behavior by the imposition of statutory rules, soft law and self-imposed codes of conduct.Footnote 177 A good example is, for instance, the regulation of the post-retirement activities of justices of the German Federal Constitutional Court by the non-binding Code of Conduct.Footnote 178 Another helpful policy is to “disaggregate” the apex court and clarify which embedding activities should be undertaken by judges individually or as a bench and which should be shouldered by court personnel, for example by the communications department.Footnote 179 Regarding the alleged violation of the principle of the separation of powers, the first three proposed embedding strategies—a media and communications strategy, reaching out activities, and the minimalization of controversial off-the-bench activities by judges—do not encroach upon that principle. It is generally accepted that courts should communicate with the media,Footnote 180 that most reaching-out activities have no separation of powers aspect,Footnote 181 and that the minimalization of controversial off-the-bench activities of judges either does not raise any separation of powers concern or, if it does as in the limitation of the revolving door phenomenon, the proposed solution may actually enhance the separation of powers. The fourth proposed embedding strategy, self-awareness and the avoidance of structural judicial bias, if exercised carefully does not raise separation-of-powers concerns either. This strategy does not call for deferential judicial decision-making towards the ruling government or even the people, but only stresses the importance of awareness of structural bias. Avoidance of judicial self-dealingFootnote 182 and a bad habit of looking at disputes through the prism of the life experience of a high social class, to which judges in Europe belong, are thus fully compatible with the principle of the separation of powers.
The other limitations of the proposed embedding strategies can also be overcome. It is true that some embedding strategies require significant resources, but the apex courts in the European Union are usually well-funded. Moreover, they can start by overcoming the low-cost ones such as the minimalization of controversial off-the-bench activities, the avoidance of structural bias, and improving social media communication. Hearings taking place outside the court’s seat can be organized with the cooperation of the local courts in order to reduce the costs of such events. With sufficient creativity, goodwill, and perseverance, most embedding strategies can be fulfilled with limited costs. Regarding the lack of interest among some segments of the general public towards embedding activities, it is in part inevitable. However, that does not diminish the importance of proactively engaging in embedding activities, because other segments of the general public might be responsive to such efforts. Again, courts can focus on those segments of society that are willing to be informed and educated and that are at least occasionally interested in the courts. In de Visser’s words, courts should initially focus their embedding activities on a “curious public,” and only later proceed to an “uncurious public.”Footnote 183 That said, true embedding in all segments of the general public will often require cooperation between courts and other institutions, such as ombudspersons, anti-corruption agencies, judicial councils, the remaining two traditional branches of government, and democracy-protecting or knowledge-based institutions.Footnote 184 That applies especially to the “uncurious public.” Regarding the risk of the abuse, embedding strategies, like anything else from eternity clausesFootnote 185 to judicial councils,Footnote 186 can surely be abused. The first step in the effort to prevent this from happening is to be aware that this can happen. Good practice is again to regulate judges’ non-judicial behavior.Footnote 187 Other legal professions, legal scholars, civil society, and supranational bodies can also play an important role in preventing the embedding strategies from going astray. Finally, the danger of oversimplification can be overcome by providing several types of communication that ranges from the simplest one—for example tweets, Instagram posts, headnotes or a short TV interview—to more complex—for example a newspaper interview, a long press releases, a plain language opinion summary, a factsheet or a podcast—that could satisfy the pedigree of “social media surfers” as well as more demanding readers.Footnote 188
In sum, the adoption of embedding strategies by courts and judges is not without its risks or limits. Nevertheless, the benefits of these embedding strategies, if exercised with prudence, incrementally, and with respect to the prevailing judicial culture, overcome these risks and limitations. Therefore, courts and judges should approach embedding strategies with a healthy degree of circumspection and consider them as only one instrument that can help in the quest for enduring relevance and respect for the rule of law and judicial independence. They also need to adjust them to the relevant judicial culture and make sure that they get it right the first time.
E. Conclusion
In this Article I have argued that the changing nature of the polarization of Western societies poses a big challenge for European apex courts. It threatens public trust in these courts and undermines their social embeddedness. Based on the existing studies on public trust and responsiveness of courts and the interviews with key stakeholders, I suggest that one important way in which European apex courts can tackle this challenge is to improve their judicial as well as non-judicial communication with ordinary people through embedding strategies. There is no proven golden off-the-rack instruction manual on how to do this, but this Article has suggested four embedding strategies that may increase the social legitimacy of the apex courts in the eyes of the precariat. These strategies include: (1) The media strategy; (2) proactive engagement with the precariat via “reaching out” activities such as social events and holding hearings outside the courts’ seats; (3) minimalization of controversial off-the-bench activities of judges; and (4) self-awareness and avoidance of structural judicial bias.
To be sure, the success of these strategies is context-dependent and not necessarily straightforward. This Article explicitly acknowledges and discusses the risks and limits of judicial engagement in the embedding strategies. It is for empirical studies to prove what strategy works under what circumstances and whether it can reduce political polarization. Such empirical studies are limited and difficult to carry out, but the growing use of conjoint survey experiments and vignettes, albeit in slightly different contexts, has indicated a path for future research.Footnote 189 Nevertheless, even now there is plausible evidence that apex courts should care about their public image and be proactive in shaping it. If they fail to do so, constitutionalism may, in the long run, become “a system of rule that is unlikely to carry popular support, without which only increasing authoritarianism and countervailing reaction will result.”Footnote 190
Acknowledgements
I am grateful to the participants of the Berlin conference, my colleagues at the Judicial Studies Institute (Masaryk University), Mauro Arturo Rivera León, Jaroslav Benák, Marta Cartabia, Maartje de Visser, Björn Dressel, Philipp Koeker, Luigi Rullo, Kateřina Šimáčková as well as to all three co-editors of this special issue for their insightful comments and ideas.
Competing Interests
The author declares none.
Funding Statement
This work was supported by the European Regional Development Fund project “Beyond Security: Role of Conflict in Resilience-Building” (reg. no.: CZ.02.01.01/00/22_008/0004595).
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