ABSTRACT
This chapter focuses on how the Polish Constitutional Tribunal (PCT) encountered politics. It argues that because the PCT judges’ nomination process is highly partisan, it is the political/partisan change that explains best the fluctuations of the judicial behaviour as reflected in the PCT decisions vis-a-vis parliament. The Tribunal was activist when there was no clear majority in the Parliament and more deferential when parliamentary majorities succeeded in electing judges more amenable to the requirements of political governance. For most of the 1993–2020 period, the PCT acted as a Kelsenian negative legislator and a neutral professional adjudicator following its self-proclaimed legitimacy doctrine. However, during crises and the period of bipolar politics (2005–2020), PCT judges acted as the third chamber of Parliament and took political-partisan considerations into account. This behaviour of the PCT was used as a justification for packing the Tribunal with loyalists of the government after 2016 who effectively converted the PCT into an obedient tool of the ruling majority. This PCT story might be considered as a stress test for the method of judicial politics analysis proposed in the whole volume. This kind of analytical method (falsely) assumes that judges take seriously formal rules of the constitution, the court operation, and the legal order in general. But this is exactly why the conventional method of analysis does not fit into a political environment where the written law is significantly different from actual practice as is the case in post-2016 Poland.
