PERSPECTIVE Democratic Expeditions Remedying the Anti-Liberal Capture of Constitutional Courts Fabio Wolkenstein Constitutional Courts and Democracy What are constitutional courts? In many democracies, constitutional courts serve as the fi­nal arbiter of cases that raise constitutional questions, such as cases in which the constitutionally guaranteed funda­mental rights of citizens are at stake. Constitutional courts typically have a monopoly on assessing the constitutionali­ty of legislation and the power to invalidate laws and stat­utes that they deem unconstitutional. In addition, constitu­tional courts are often given equal status with the supreme court, which is usually the highest court of appeal in civil or criminal matters. Both are courts of last resort. Constitutional courts – pros and cons Because of their role as“guardians” of the constitution, constitutional courts are today widely seen as core institu­tions of liberal democracy. Proponents of constitutional courts celebrate them as the ultimate guarantee for the protection of democratic governance, the rule of law and respect for human rights. This view has become increasing­ly popular after 1989/90, in tandem with the democratisa ­tion of post-Soviet states(Manow 2024). Following the pre ­vailing liberal-democratic wisdom, many of these new de­mocracies established strong constitutional courts. Yet constitutional courts have also been the subject of much controversy. Some critics argue that they are inevita­bly politicised institutions that ultimately implement the agendas of the partisan actors who appointed the judges, rather than being truly independent. This concern is famil­iar from debates about the U.S. Supreme Court, which also has the power to judge the constitutionality of legislation. For many years, judicial appointments have been a major point of contention between Democrats and Republicans seeking to gain a majority on the bench. Other critics have suggested the opposite, namely that con­stitutional judges are often unduly“activist,” pursuing their own political agendas while(falsely) claiming to defend the constitution. This criticism has routinely been levelled at the supranational European Court of Justice(ECJ). The objec ­tion here has been that ECJ judges actively pursue a policy of deepening European integration, disregarding the prefer­ences of national majorities in legislatures(Schmidt 2018). Remedying the Anti-Liberal Capture of Constitutional Courts 1