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8 E. Eur. Const. Rev. 81 (1999)
The New Hungarian Constitutional Court

handle is hein.journals/eeurcr8 and id is 301 raw text is: After Solvom, a retreat into formalism?

The New Hungarian Constitutional Court
Kim Lane Scheppele

state under the rule of law is often described
as one with a government of laws rather than
of men. But even in such a state, particular
men in power make a difference.
Fot close to a decade, the Hungarian Consti-
tutional Court has been perhaps the most powerful
court of its kind in the world. It has now undergone a
complete turnover ofjudges in the span of three years.
Of the eleven judges on the Court in the fall of 1999,
eight were elected between March 1998 and June
1999. The most senior judge, Andras Hollo, was
elected only in November 1996. When the widely
acknowledged intellectual leader of the Court, former
president Laszlo Solyom, left the Court in the fall of
1998, Janos Nemeth, professor of civil procedure and
chair of the National Election Comnmittee, was elected
The first major decisions announced under the
new president with his nearly new Court reveal that
the new judges have views very different from those of
the departing judges who shaped the Court in its
initial nine years. It is still early, of course, and recent
decisions are not definitive proof of a new attitude at
the Court. Still, two important decisions in the
opening months of 1999 indicate that the Court has
taken a formalist turn, thereby increasing the govern-
ment's and parliament's room for maneuver.

From the Solyom to the Nemeth Court
Most observers of the Constitutional Court recognize
the enormous influence that former president Laszlo
Solyom exercised over the tone and direction of the
Court's decisions in its first nine years. Solyom was one
of the five initial judges whose names had been agreed
on at the 1989 national Roundtable Talks, and, as pres-
ident, he wrote many of the Court's most sweeping
decisions. (A volume of English translations of the
Court's major decisions, edited by Solyom, will soon
be published by the University of Michigan Press.)
Offering far-reaching human-rights protection,
the Solyom Court actively used its power to declare
that parliament was acting unconstitutionally by
omission, and struck down as unconstitutional
roughly one out of three challenged laws in its early
years. Solyom was known for advocating an invisible
constitution and for talking about a common
constitutional law of Europe, even though neither
concept ever appeared in a majority opinion. Both
concepts, however, authorized an expansive jurispru-
dence in which little deference was accorded to
parliament. Substantive answers to a number of policy
questions were given by constitutional interpretation.
Solyom was committed to the idea of an activist court
that based its decisions on a coherent jurisprudence of
principle that left relatively little room for politics.

FALL 1999

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