Constitutional justice: a countermajoritarian institution?

Abstract

Most existing studies say that constitutional justice works as an «anti-majority» mechanism. An analysis of Portugal's case shows that this idea is, at least, simplistic. The political role played by constitutional justice results not only from the institutional rules that regulate the powers and workings of the Constitutional Court but also from situational political factors, given the complexity of the motivations behind litigancy and the factors that explain judicial behaviour. On one hand, political actors are strategic and sophisticated in «judicialising politics». On the other hand, the fact that the Court is generally immune to control by political majorities does not necessarily result in a high degree of judicial activism.