The (Very) Political Dissent: Dissenting Opinions and the Polish Constitutional Crisis

Abstract

AbstractThis Article examines changes in dissent patterns that occurred on the Polish Constitutional Tribunal during a period of intense constitutional and political change in Poland. An analysis of these dissents shows judges only rarely used this opportunity to express the traditional differences of opinion on law or policy. Instead, judges on the Tribunal increasingly used dissents in an altogether new form – as a way to broadcast allegations of legal and procedural violations that occurred within the court’s operation itself. More troublingly, some judges also used their dissents to advance distinctly political narratives and overtly attempt to de-legitimize the court’s announced decisions. Ultimately, these dissents show that constitutional judges may not be immune to participating in the larger social and constitutional battles within society. In fact, these dissent patterns suggest that, in a more fragmented and polarized era of politics, judges can and have made use of the dissent as a way to broadcast distinctly political messages.