The Second Russian Constitutional Court:
An 11-Year Assessment of Its Role in
Center-Regional Conflicts
Abstract
This paper considers the role of the Second Russian Constitutional Court in resolving
center-regional conflicts from 1995 to 2005. Previous work by this author indicated that the
central central government and individual actors were favored over regional actors in centerregional
conflicts between 1995 and 2003. This study expands the period studied and now spans
most of the Putin era, with its “verticalization” of the federal system. This study includes an
analysis of basic statistics on number of cases brought before the Court and what actors as well
as binomial regressions to test the effects of time on potential favoritism by the Court. In a
departure from previous work, additional analysis is included to determine the actual probability
of the Court favoring specific actors in center-regional conflicts.
Introduction
Judicial independence is a widely debated (and some would say, oxymoronic) concept in
both legal studies and political science research; this is because many would argue that with no
independent enforcement capacity, the judicial branch of any government cannot be truly
independent. The executive branch serves as the actual enforcement power behind courts and the
various interests involved in cases must either be coerced into accepting the rulings of courts by
the executive, or already accept that a court has legitimate authority and adopt the principles of
the decision. But if the executive branch refuses to enforce decisions or outside interests feel that
they can ignore the decisions, the court’s independence and authority vanishes. Are courts really
independent entities under these conditions? Many researchers still say yes, and how courts
establish independence and legitimacy is a question of long standing in both theory and research
literature.1 Due to recent changes in the political landscape since the end of the Cold War, this
question has again become controversial as a number of potential “test cases” for theories of
independence have surfaced.
The “Third Wave” of democratization in the former Soviet republics, Eastern Europe,
Asian and South American countries (see Huntington 1991) has given rise to a corresponding
wave in research on establishing the independence and legitimacy of new courts, particularly
constitutional courts. Constitutional courts are vital in establishing democratic regimes due to
their commitment to protecting constitutions and basic laws that are the foundation of the rules
and structures of the new regime. Many of these “Third Wave” countries have limited
experience with rule of law, giving constitutional courts an even more important position in these
countries than in long-standing democracies. But coupled with this important job is the issue of
establishing the legitimacy and authority to hand down decisions in the first place. If this
legitimacy is not established, there is little possibility of protecting the constitution and basic law
against challenges. Consequently, courts in these societies are between a “rock” of needing to
protect the foundations of a new regime and a “hard place” of gaining legitimacy from outside
interests that may have reasons for ignoring the rules and structures of the new order. Research
has focused on what processes could create legitimacy under these circumstances.
The research on establishing legitimacy and independence of new courts has tended to
fall into two camps. The first camp focuses on the formation process of new courts including
which interests were involved in creating the courts; powers assigned to the courts such as
abstract review, concrete review, or both; and who has standing to approach the court, when and
on what issues (see Brzezinski 1993, Halmai 1995, O’Malley 1996, van Huyssteen 2000,
Schiemann 2001, Smithey and Ishiyama 2000, 2002; Herron and Randazzo 2003, Thorson 2004).
The formation literature has been extremely useful for determining the initial legitimacy of
courts; as noted by Schiemann 2001, interests that were involved in the formation process of
Hungary’s Constitutional Court were highly convinced of the legitimacy and impartiality of the
resulting institution. This led to the Court’s first incarnation being used as a major forum for the
resolution of conflicts within central institutions and between the executive and legislative
branches in particular. However, this was the first Hungarian court and later incarnations of the
court showed much less independence or perceived legitimacy; most of the initial justice
appointments had termed out by the late 1990s and the later incarnations of the court were much
less inclined to make strong decisions that went against state interests (Schepple 2003). While
formation has definite usefulness for explaining the beginning years of constitutional courts, it
has not been as useful for considering independence and legitimacy later in a court’s tenure.
The second camp of literature on this issue has considered the functions or actions of
courts in detail after courts are formed (see Sharlet 1993, Hausmaninger 1995, Dickson 1997,
Langa 1997, Barry 2001, Epstein, Knight and Shvetsova 2001, Schepple 2002, 2003; Herron and
Randazzo 2003, Klug 2002, Thorson 2003, Treygar 2004, Berat 2005, Smithey 2006; Trochev
2004, 2006; Pinnell 2005, 2006, 2007; Ruibal 2008). The literature in this section has naturally
taken time to develop given the newness of these courts and the need to allow them to become
institutionalized and make decisions. But this literature is probably better adapted to answering
the ultimate question of how new courts in new regimes gain legitimacy, given the fluidity of all
institutions in these societies and the competition of interests. It takes time for institutions to
become entrenched in a society and the intended powers and objectives of constitutions and basic
laws will change during that time, for reasons of political expedience, economics and other
issues. As noted above with the Hungarian Constitutional Court, the powerful court changed
radically over time as judges termed out and were replaced with justices that felt more politically
dependent on the interests that appointed them to the bench (Schepple 2003, 227). Because time
and interaction of courts with outside interests may be vital to their ultimate independence and
authority, research has focused on issues such as judge appointments over time, the types of cases
brought to the court, whether or not they were accepted, and the ultimate decisions; and
acceptance and implementation of the decisions by other branches of government or the public
after they were issued. This research has shown that along with the Hungarian case, many new
courts have gained or lost legitimacy and independence as they function over time.
Research on the legitimacy of new courts has also led to overarching theories of how
courts should behave in new regimes if they have the goal of creating legitimacy and
independence. Two examples are worth mentioning here. Filippov, Ordeshook and Shvetsova’s
2004 theoretical work on federalism sketches out a theoretical scenario where central courts
would exist primarily to coordinate interests in a new federal system and establish equilibria
between these interests. Strict constitutional protection may therefore not be the primary
objective for these courts given their need to establish legitimacy with outside interests. Working
with this understanding, I created a theoretical model in 2007 to test the idea that constitutional
courts would take outside interests into account in making decisions, with the ultimate goal of
increasing their legitimate authority with these interests (see Pinnell 2007). The conclusion of
this research was that the actions of courts (decisions) did ultimately affect their legitimacy and
authority, and did so more than the initial formation of these courts. The results of this study also
showed that courts could increase or decrease their authority with their actions over time.
These two pieces of research are important in that they make explicit assumptions about
court behavior. First, courts will not be impartial in their initial stages of existence, but
deliberately favor some interests over others in making decisions. For example, courts would
favor central government interests over regional interests when division of powers and
federalism are issues. Second, over time, courts may begin to alter this behavior by ruling
against outside interests, even the most powerful ones that enforce court decisions; this could be
an indication of greater independence and that the court is confident that it has legitimacy in
society. By explicitly assuming favoritism in courts, it may be possible to consider not how well
courts protect constitutions and basic law, but how they gain the legitimacy to do so in the first
place.
This brings us to the research question for this paper. Is it actually possible to measure
favoritism in court decisions towards particular interests? If favoritism arises in new court
decisions, who will be favored? I have focused on federalism as an issue in my research because
of its heavily political nature, the various interests and positions of power involved (central
executives and legislatures, regional executives and legislatures, citizens and groups) and
because theses for how favoritism will surface can be easily generated. Simply put, the court will
favor the more powerful interest in a dispute; in federalism, this tends to be the central
government. The next question is how to test this thesis, and I do so here using a quantitative
analysis of court decisions from the Second Russian Constitutional Court during the first eleven
years of its existence (1995-2005). This period of time includes most of the tenure for presidents
Boris Yeltsin and Vladimir Putin and covers significant fluctuations in power between the central
and regional governments in the Russian Federation.
Before considering the research, some background on the Russian Federation and how the
Second Constitutional Court has functioned within it would be helpful. This information is in
the next two sections. After this background, I outline the research done for this paper by
describing the data and the models used for testing whether or not favoritism figures in court
decisions. Finally, I conclude with some discussion of the research and its implications.