How to Evade the Constitution: The Case of the Hungarian Constitutional Court’s Decision on the Judicial Retirement Age, Part II

Kim Lane Scheppele, Princeton University

Part Two: “The System Remains”

(Continued from Part 1: The Decision)

On the question of remedies offered by the Court decision itself, the Constitutional Court engaged in what I’ve called elsewhere “new judicial deference.” In practicing new judicial deference, a court makes a brave decision on the law but then fails to give the claimant any meaningful relief. The claimant wins big on principle. But if you are actually the claimant who brought the case seeking some change in your situation, you discover that you got only words. In the judicial retirement age case, the Court did not have the power to nullify all of the presidential orders through which the judges were fired, but it could have done so in the specific cases under review. The Court did not even do that. Those orders – and all of the others – still stand even while the law on which the orders were based has been voided. The Court provided no meaningful remedy in its opinion, not even to those directly involved in the case, even though it could have granted at least those judges some relief.

The judges’ actual fate in the retirement age dispute is important – and not just for the judges themselves. The lower retirement age has been a central element in Orbán’s plan for remaking the judiciary. Introduced in the new pension law, which went into effect on 1 January, this sudden drop in the retirement age removed nearly 10% of all of the judges in the country in its first year in operation, giving the Orbán government the chance to name their replacements. Hungary’s judicial system, like most of the judiciaries in Europe, has a civil-service-style promotion system in which judges enter the system in lower posts and work their way up the promotion ladder as they age. So a cut in the retirement age decapitates the leadership structure ...

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