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While criticism of the judiciary is both legitimate and desirable, the question arises whether such criticism should have any limits. This issue becomes particularly pressing when the criticism does not come from ordinary citizens but from political actors, and when the target is not just any court, but a constitutional court. Criticism voiced by politicians is often considered one of the most harmful forms of speech directed at the judiciary.David Kosař, ‘Freedom of Speech and Permissible Degree of Criticism of Judges’ (master’s thesis, Central European University 2007) <https://www.etd.ceu.edu/2008/kosar_david.pdf> accessed 31 October 2025, 32.⁵⁾

This article seeks to identify the circumstances under which political criticism of a constitutional court may turn into a tool of abuse.This article does not examine whether political criticism of constitutional courts may or should be legally restricted. It does not therefore concern freedom of speech per se.⁶⁾ In this article, abusive political criticism is understood as criticism that no longer engages with the correctness of judicial decisions—it does not enhance accountability—but instead challenges or erodes the institutional legitimacy of the court, either directly or through its cumulative effects.See Addo (n 3) 10–12.⁷⁾ Moreover, while such criticism need not always be intentional, it is most typically abusive where it forms part of a broader political strategy by reframing the court as a partisan actor and thereby weakening its authority. In this sense, the phenomenon resembles what David Landau, who popularised the concept of abusive constitutionalism, describes as “constitutional change”.David Landau, ‘Abusive Constitutionalism’ (2013) 47 U.C. Davis Law Review 189, 195.⁸⁾ In the present context, however, the change does not take the form of a constitutional amendment nor constitutional replacement.Ibid.⁹⁾ Rather, it operates at the level of perception: it consists in a shift in how the public understands the role of the constitutional court within the system.

Many scholars have examined how constitutional courts intervene in politics and may thereby come to be perceived as partisan actors. Much less attention, however, has been paid to the ways in which this framing may be reinforced by criticism voiced by political actors. This article therefore examines specific features of criticism directed at constitutional courts by politicians—an aspect that has not yet been comprehensively addressed in legal scholarship.Kosař (n 5) for example, dealt with permissible degree of criticism of judges in general, and not only criticism by politicians. Some related topics were addressed in Alisher Juzgenbayev, ‘Framing the Judiciary: Effects of Partisan, Procedural, and Populist Frames on Apex Court Perceptions in Czechia’ (2025) 13 Journal of Law and Courts 97.¹⁰⁾ I will argue that political criticism may draw constitutional courts into partisan conflictsJames L Gibson, Milton Lodge and Benjamin Woodson, ‘Losing, but Accepting: Legitimacy, Positivity Theory, and the Symbols of Judicial Authority’ (2014) 48 Law & Society Review 837, 860.¹¹⁾ and that, once framed in this way, their institutional legitimacy may seriously suffer.Gibson, Lodge and Woodson (n 11) 839.¹²⁾ This does not mean that political criticism of constitutional courts should not exist; rather, it suggests that it deserves closer scholarly attention, given the risks it may pose.

Political attacks on constitutional courts are not merely rhetorical phenomena but often form part of broader conflicts between political actors and the judiciary.Nuno Garoupa and Pedro C Magalhães, ‘Public Trust in the European Legal Systems: Independence, Accountability and Awareness’ (2021) 44 West European Politics 690, 707. See also Katarína Šipulová, ‘The Light and the Dark Side of Judicial Resistance’ (2025) 47 Law & Policy. Available at <doi.org/10.1111/lapo.12247>.¹³⁾ In recent years, constitutional courts in Israel, Poland, Hungary, Turkey or Hong Kong have faced sustained political criticism that coincided with attempts to undermine constitutional safeguards.Martin Gandur, Timothy K Chewning and Amanda Driscoll, ‘Awareness of Executive Interference and the Demand for Judicial Independence: Evidence from Four Constitutional Courts’ (2025) 13 Journal of Law and Courts 122, 130; Šipulová (n 13) 1–3; Brian Christopher Jones, ‘Court Criticism and the Rule of Law: From “Foreign” to “Dinosaur” Judges’ (2022) SSRN Electronic Journal <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4180392> accessed 15 November 2025, 6.¹⁴⁾ Similarly, in the United States, many scholars have noted that the increasing politicisation of the Supreme Court corresponds with criticism voiced by political actors, whether as its cause or as its consequence.Jon C Rogowski and Andrew R Stone, ‘How Political Contestation Over Judicial Nominations Polarizes Americans’ Attitudes Toward the Supreme Court’ (2021) 51 British Journal of Political Science 1251; Matthew Levendusky, et al., ‘Has the Supreme Court become just another political branch? Public perceptions of court approval and legitimacy in a post-Dobbs world’ (2024) 10 Science Advances. Available at <doi.org/10.1111/lapo.12247>.¹⁵⁾ The American example suggests that political criticism should not be seen merely as a precursor to more direct institutional interventions. Rather, it may itself play a role in reshaping how constitutional courts are perceived, and in doing so gradually undermining their institutional legitimacy and the willingness of others to comply with their decisions.

Although some of the conclusions of this article may be transferable, to a limited extent, to foreign constitutional courts, namely on those operating within the so-called Kelsenian model of centralized constitutional review, the primary focus is the Czech Constitutional Court. Accordingly, the article refers to some statements made by Czech politicians about the Court. Finally, it should be noted that the conclusions of this article naturally do not apply to constitutional courts that have already been politically captured or subordinated to authoritarian regimes.The article therefore does not address, for example, criticism voiced by democratic opposition actors towards politically captured constitutional courts in authoritarian regimes.¹⁶⁾ The article focuses on criticism directed at otherwise independent constitutional courts and seeks to identify forms of abusive rhetoric that weaken their institutional legitimacy.

1. How does political criticism affect the legitimacy of constitutional courts?

1.1 Legitimacy based on independence, accountability, or a bit of both?

One of the keys to understanding abusive criticism lies in the question of where constitutional courts derive their legitimacy.See Jones (n 14) 4. ¹⁷⁾ While numerous theories of judicial legitimacy exist, this article adopts the concept of institutional legitimacy, as it best captures the form of legitimacy that may be affected by political criticism (this concept is sometimes also often referred to as public trust or diffuse support).Joseph H H Weiler, The Constitution of Europe: “Do the New Clothes Have an Emperor?” and Other Essays on European Integration (Cambridge University Press 1999) 77–86. See also David Easton, ‘A Re-Assessment of the Concept of Political Support’ (1975) 5 British Journal of Political Science 435.¹⁸⁾ Institutional legitimacy can be understood as the long-term trust placed in a court, which persists regardless of the outcome of particular decisions or changes in the court’s composition.Michael J Nelson and James L Gibson, ‘How Does Hyperpoliticized Rhetoric Affect the US Supreme Court’s Legitimacy?’ (2019) 81 The Journal of Politics 1512, 1513; Gandur, Chewning and Driscoll (n 14) 125.¹⁹⁾

Courts occupy a vulnerable position in liberal constitutional democracies because their legitimacy depends on the willingness of other actors to acknowledge their authority even when they disagree with them.Mariana Velasco-Rivera, ‘The Soft Guardrails of Legal Constitutionalism’ (2025) 26 German Law Journal 299, 300; Allan C Hutchinson, Rethinking Legitimacy: Courts, Constitutions and Politics (Hart Publishing 2025) 14.²⁰⁾ This is even more true of constitutional courts.Hutchinson (n 20) 2.²¹⁾ The way in which political actors receive—and sometimes critically respond to—those decisions may therefore serve as an indicator of whether a court has the capacity to secure acceptance even of unpopular decisions.Maartje De Visser, ‘Constitutional Courts Securing Their Legitimacy: An Institutional-Procedural Analysis’ (2020) SSRN Electronic Journal <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3507238> accessed 31 October 2025, 5; Juzgenbayev (n 10) 100.²²⁾

The legitimacy of constitutional courts is today often discussed in terms of a continuing tension between independenceand accountability.Garoupa and Magalhães (n 13) 694–695.²³⁾ This debate stems from the very nature of constitutional adjudication in the era of so-called new constitutionalism.See Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press 2007).²⁴⁾ In addition to institutional independenceThat is, freedom from interference by the other branches of government.²⁵⁾ constitutional courts also enjoy a high degree of interpretative independence from democratically enacted legislation.Martin Shapiro, ‘Judicial Power and Democracy’ in Christine Landfried (ed), Judicial Power: How Constitutional Courts Affect Political Transformation (Cambridge University Press 2019) 23–24.²⁶⁾ In certain cases, they may even annul or set aside such legislation on the basis of broadly formulated constitutional principles.

In other words, as the range of issues considered constitutional expands, so too does the role of constitutional courts. For constitutional courts to decide legitimately on such fundamental and often finely balanced questions of value, their already considerable interpretive independence cannot be viewed as absolute. Independence alone is not sufficient to sustain legitimacy; some degree of accountability is also necessary.Jones (n 14) 3.²⁷⁾ One of the few forms of accountability compatible with judicial independence is criticism itself, including criticism voiced by political actors. It may even be argued that judicial accountability exists not despite judicial independence, but partly because of it.Garoupa and Magalhães (n 13) 691.²⁸⁾

However, this is precisely where the tension between independence and accountability comes into view. Constitutional courts must be independent enough to perform their counter-majoritarian role and to issue unpopular decisions without fear of reprisalAmanda Driscoll and Michael J Nelson, ‘Are courts “different?” Experimental evidence on the unique costs of attacking courts’ (2023) 10 Research & Politics <journals.sagepub.com/doi/epub/10.1177/20531680231188302>. ²⁹⁾, yet accountable enough to exercise that role legitimately.De Visser (n 22) 2–3.³⁰⁾ Questions of legitimacy are especially acute in the context of abstract review of legislation. It is in this sense that criticism by political actors—often the very legislators who enacted the contested laws—may become sensitive.

1.2 Positivity theory and the reservoir of good will

From the perspective of legitimacy, criticism of constitutional courts can be beneficial. This idea lies at the core of what Gibson and Caldeira described as positivity theory.James L Gibson, Gregory A Caldeira and Vanessa A Baird, ‘On The Legitimacy of National High Courts’ (1998) 92 American Political Science Review 343.³¹⁾ Put simply, it suggests that the more attention courts attract to their adjudication, the more trust they may enjoy in the long run, because people gain a better understanding of how courts operate.See James L Gibson and Michael J Nelson ‘Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy?’ (2017) 14 Journal of Empirical Legal Studies 592, 595.³²⁾ In their well-known formulation, “to know the courts is to love them”Gibson and Nelson (n 32) 595.³³⁾.

Yet this claim becomes less convincing once attention to courts is generated not by their decision-making, but by political criticism surrounding it.See Aylin Aydin-Çakir and Eser Şekercioğlu, ‘Public Confidence in the Judiciary: The Interaction between Political Awareness and Level of Democracy’ (2015) 23 Democratization 634.³⁴⁾ Public attention to constitutional courts is now often mediated through partisan conflict.Garoupa and Magalhães (n 13) 700.³⁵⁾ Constitutional courts may therefore be drawn by political actors into these battles—battles that they may even “win” in individual cases, in the sense of securing authority for a particular decision, while still losing the long-term battle for institutional legitimacy.Shapiro (n 26) 28.³⁶⁾

Scholars often discuss how constitutional courts lose public trust by actively engaging in politics and describe the effects of the judicialization of politics (and vice versa).Michel Rosenfeld, ‘Judicial Politics Versus Ordinary Politics: Is the Constitutional Judge Caught in the Middle?’ in Christine Landfried (ed), Judicial Power: How Constitutional Courts Affect Political Transformation (Cambridge University Press 2019) 36.³⁷⁾ What is often overlooked, however, is that it was politicians themselves—legislators or constitutional legislators—who endowed constitutional courts with powers that inevitably place them in politically salient disputes. If, for example, a constitutional court is authorised to review legislation enacted by the governing majority at the request of the opposition, there is, in a sense, no way back: the court must decide. Yet it is precisely for this kind of engagement that constitutional courts are then criticised; setting aside for the moment whether such criticism is justified in a particular case.De Visser (n 22) 3–4.³⁸⁾

In this context, scholars also refer to the reservoir of good will (or reservoir of legitimacy).Jonathan M King and Jordan A Schoenherr, ‘A Matter of Opinion? How Unexpected Opinion Authors Influence Support for Supreme Court Decisions’ (2024) 12 Journal of Law and Courts 144, 147.³⁹⁾ A court gradually builds up a reputation as a trustworthy arbiter, both by virtue of its institutional position and, at least at times, through decisions that are accepted by majority of the public.Juzgenbayev (n 10).⁴⁰⁾ From this reservoir, the court can then draw when it issues decisions that are unpopular.Shapiro (n 26) 21.⁴¹⁾

However, the reservoir may no longer operate in such a straightforward way, particularly in the case of constitutional courts deciding politically salient disputes. People may now be less likely to evaluate courts on the basis of their overall body of case law, gradually building or depleting trust over time.See Juzgenbayev (n 10) 100.⁴²⁾ Instead, public perceptions are often shaped by episodes of political criticism, which tend to attract media attention and can therefore exert a notable influence on how the institution is perceived.See Gandur, Chewning and Driscoll (n 14) 142–145.⁴³⁾

For these reasons, more recent scholarship has refined positivity theory. Not all forms of awareness of courts generate the desired positivity bias.Gibson and Nelson (n 32) 595–597.⁴⁴⁾ Rather, its effect depends on what that awareness is about. In particular, the positivity bias appears to rest on the perception that courts operate above ordinary politics.Driscoll and Nelson (n 29).⁴⁵⁾ In this sense, the reservoir of goodwill is undermined most seriously not by unpopular decisions as such, but by criticism that reframes the court as an ordinary partisan actor.Gibson and Nelson (n 32) 595–597; Nelson and Gibson (n 19) 1513.⁴⁶⁾

Traditionally, constitutional courts were regarded as neutral arbiters between the people and the legislature—independent and impartial organisers of the democratic game, ensuring that the rules were followed.Eric Hamilton, ‘Politicizing the Supreme Court’ (2012) 65 Stanford Law Review Online <https://www.stanfordlawreview.org/online/politicizing-the-supreme-court/> accessed 31 October 2025.⁴⁷⁾ In that role—to use a simple metaphor—they could resemble linesmen watching for offsides: present, but not themselves at the centre of the game. Today, however, constitutional courts are increasingly portrayed as arbiters between the government and the opposition: referees placed at the very centre of the field and therefore exposed to harm.

To sum up, replenishing the reservoir of goodwill has become increasingly difficult. Because political actors so often frame constitutional rulings negatively, people may come to focus primarily on the judgments they disagree with.Hutchinson (n 20) 22; see also Gibson, Lodge and Woodson (n 11) 840.⁴⁸⁾ The danger is cumulative: not simply that a court will be criticized for one controversial decision, but that repeated partisan framing may gradually erode the legitimacy.See Jan Petrov, ‘(De-)judicialization of Politics in the Era of Populism: Lessons from Central and Eastern Europe’ (2022) 26 The International Journal of Human Rights 1181, 1196. ⁴⁹⁾

1.3 Specifics of political criticism

Some argue that political criticism is merely a frame through which the public learns about the object of the comment.Nelson and Gibson (n 19) 1512.⁵⁰⁾ That is true, but only up to a point. The “mere” frame matters a great deal and deserves attention.

Unlike criticism voiced by ordinary citizens, political criticism is expressed by actors holding institutional authority.Jonathan White and Lea Ypi, ‘Political Parties’ in Richard Bellamy and Jeff King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press 2025) 786–789.⁵¹⁾ From the standpoint of legitimacy, political criticism of constitutional courts is far more consequential than that of ordinary people. Research suggests that the public’s willingness to accept constitutional rulings is influenced heavily by how political actors react to them.Juzgenbayev (n 10) 101.⁵²⁾ When people are told that a ruling aligns with their political affiliation, they are more likely to view both the outcome and the court itself as legitimate.Ibid.⁵³⁾

The impact of criticism directed at the judiciary depends significantly on source credibility.Nelson and Gibson (n 19) 1513–1515.⁵⁴⁾ One might therefore conclude that only criticism voiced by widely trusted politicians poses a real risk to judicial legitimacy. Such a conclusion, however, would be misleading. The distinctive feature of political criticism lies in the fact that people assess the credibility of the critic (source) through the lens of their own political preferences.Stephen P Nicholson and Thomas G Hansford, ‘Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions’ (2014) 58 American Journal of Political Science 620.⁵⁵⁾ In this sense, political criticism contributes to the politicization of constitutional courts by making acceptance of judicial decisions increasingly dependent on partisan alignment.

Even where criticism from one segment of the political spectrum does not reduce overall public trust—and may even reinforce it among opposing groupsIbid.⁵⁶⁾—it still ties judicial decision-making more closely to partisan cues. A court may enjoy the support of a majority of citizens; yet if that support is grounded primarily in political alignment, the court may still be, to some extent, delegitimized by being drawn into partisan conflict.Gibson and Nelson (n 32) 594–597.⁵⁷⁾

Political actors occupy a particular position within the constitutional order: they are not external observers, but participants in the distribution of power that constitutional courts are asked to review. This does not mean they must not criticize, but it does suggest that such criticism should remain measured. A degree of restraint may even serve as an “insurance policy” for political actors themselves, as preserving the legitimacy of constitutional courts helps maintain a system that protects them when they are no longer in power.Shapiro (n 26) 33–34.⁵⁸⁾ In this sense, such restraint can be seen as part of the soft guardrails of legal constitutionalism, which require political actors to avoid “constitutional hardball”Mark Tushnet, ‘Constitutional Hardball’ (2003) 37 J. Marshall L. Rev. 523; Velasco-Rivera (n 20) 300.⁵⁹⁾.

Another specific feature of political criticism of constitutional courts is that the conventional justification for criticism—namely, enhancing accountability—operates somewhat differently when the criticism is voiced by political actors rather than by the people. Politicians, as representatives of the people, may of course also contribute to this form of democratic accountability—the expansion of constitutional adjudication into areas once reserved for the political branches naturally provokes reactions.Jakub Hodulík, ‘Kritika třetího Ústavního soudu a jeho soudců jinými ústavními činiteli’ in Marek Antoš and Jan Wintr (eds), Třetí Ústavní soud (Leges 2022) 47.⁶⁰⁾ Yet constitutional courts are often designed precisely to review the actions of those same political actors.Addo (n 3) 12.⁶¹⁾ For that reason, the accountability argument does not carry the same weight when invoked to justify criticism coming from politics.

Political criticism of constitutional courts is also distinctive in terms of potential motives. Politicians may sense an opportunity to escalate their attacks once legitimacy begins to erode and the public backlash is limited.Tom S Clark, ‘The Separation of Powers, Court Curbing, and Judicial Legitimacy’ (2009) 53 American Journal of Political Science 971.⁶²⁾ Political criticism does not necessarily constitute a strategic attempt to undermine the court, yet it inherently carries the potential to do so.Addo (n 3) 20.⁶³⁾

A further specific feature of political criticism lies in how difficult it is for (constitutional) courts to respond to it. In recent years, courts have developed various means of reacting to criticism without compromising their impartiality.See Šipulová (n 13). The ways in which courts may defend themselves against criticism are not the subject of this article.⁶⁴⁾ Political criticism, however, presents a different challenge. In such cases, any attempt by the court to defend itself publicly risks being perceived as political engagement.

In sum, as the decisions of constitutional courts increasingly touch upon politically charged issuesRosenfeld (n 37) 37.⁶⁵⁾, it becomes harder to preserve the perception of courts as politically neutral institutions. Political criticism may intensify this problem by framing courts, intentionally or not, as partisan players rather than neutral arbiters. These considerations do not mean that criticism voiced by political actors is inherently abusive. They do suggest, however, that such criticism should be assessed with sensitivity to various factors and circumstances.

2. Recognizing abusive criticism: contextual indicators

Constitutional courts inevitably decide issues that have political consequences, and political actors will naturally react to such decisions. The problem arises when criticism seeks to recast the court as just another partisan actor. It is at this point that criticism may begin to threaten the institutional legitimacy on which constitutional adjudication depends.

This chapter proposes an analytical framework for identifying circumstances in which political criticism may become abusive.See the theoretical section of this article and the definition provided in the introductory part.⁶⁶⁾ In what follows, the analysis focuses primarily on the practice of the Czech Constitutional Court and illustrates the framework through selectedThis article does not aim to provide a comprehensive assessment of the overall level of political criticism directed at the Czech Constitutional Court. The selected statements are not intended to be illustrative in terms of their overall quantity or intensity. Rather, they aim to capture a range of different types of criticism. Their purpose is primarily illustrative. The analysis focuses on the period since the so-called electoral ruling of 2021. First, I identified decisions of the Czech Constitutional Court that had attracted notable political criticism. Some critical statements were then retrieved based on prior knowledge of the public debates. Finally, additional critical statements were identified using the Gemini Deep Research.⁶⁷⁾ examples of political criticism. The framework is built around four variables: 1. the target of the criticism, 2. the author of the criticism, 3. the context in which it is voiced, and, as a separate chapter, 4. its content and purpose.This is not intended to provide an exhaustive overview of all the factors and contexts that may be relevant. The focus is on those factors that are most frequently invoked in the context of freedom of expression and through which the relevant nuances can be most effectively illustrated. See European Court of Human Rights, Guide on Article 10 of the European Convention on Human Rights (Council of Europe 2022) <https://share.google/479MPmyamEyrSnpYU> accessed 15 November 2025. The framework also draws on Kosař (n 5) 21–43. ⁶⁸⁾

These variables do not operate as a checklist that produces a conclusion. The aim of this chapter is not to classify criticism mechanically as abusive or non-abusive, but to identify circumstances in which heightened caution is warranted.

2.1 The target of the criticism

As already noted, judges of apex courts, and constitutional judges in particular, should be prepared to endure a higher degree of political criticism than judges of lower courts.Kosař (n 5) 26.⁶⁹⁾ Because they often decide politically salient matters, they inevitably place themselves under public scrutiny.Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986) [42].⁷⁰⁾ Yet we must further distinguish what exactly is being criticized.Up to this point, I have largely treated as interchangeable the criticism of the Court as an institution, criticism of its decisions, and criticism of its individual judges. This simplification served a necessary purpose in establishing the theoretical foundations.⁷¹⁾

2.1.1 The target of the criticism—individual decisions

Criticism directed at individual decisions of the Constitutional Court is generally the least troubling.Kobenter and Standard Verlags GmbH v Austria App no 60899/00 (ECtHR, 2 November 2006).⁷²⁾ It is the form most naturally connected to judicial accountability, because it typically addresses the reasoning, implications, or legal correctness of a particular ruling rather than the court’s legitimacy as an institution.

This does not mean that such criticism is always benign. Even formally decision-focused criticism may serve as a vehicle for broader delegitimizing claims. Still, criticism that remains focused on a particular decision gives less cause for concern about potential abusiveness than criticism that targets the court as such.

A typical example of such criticism, which is directed solely at a specific decision, is the statement made by then opposition MP Alena Schillerová, who, in response to the Constitutional Court’s judgment in the pension indexation case, stated in an interview: “As a citizen of this Republic, I emphasize that it is both essential and necessary to respect the decisions of the Constitutional Court. As a lawyer, however, I fundamentally disagree with this one.”‘Ústavní soud vynáší verdikt. Jak rozhodl o zkrácené valorizaci penzí?’ (Seznam Zprávy, 24 January 2024) <https://www.seznamzpravy.cz/clanek/domaci-politika-ustavni-soud-vynasi-verdikt-jak-rozhodl-o-zkracene-valorizaci-penzi-244383> accessed 15 November 2025.⁷³⁾ This example is instructive because it shows that even strong political disagreement need not undermine the Court’s institutional legitimacy. What is being challenged here is the correctness of the decision, not the legitimacy of the Court as such.

2.1.2 The target of the criticism—Constitutional Court as an institution

The distinction between criticism of individual rulings, on one hand, and of the Constitutional Court as an institution, on the other hand, is often subtle, because the two may overlap. A politician may start from disagreement with a particular decision yet formulate the criticism in a way that casts doubt on the legitimacy of the court as such.See Barfod v Denmark App no 11508/85 (ECtHR, 22 February 1989) [31], [33] and [34].⁷⁴⁾

That shift is not inherently abusive. There are clearly legitimate forms of criticism directed at the court as an institution, for example criticism of delays, lack of transparency, internal administration, or procedural dysfunction—in such cases, criticizing the court as an institution is the only logical way to raise a complaint. What is more troubling is criticism that takes a specific decision and extrapolates broader claims from it—treating a single ruling as evidence of a general institutional bias or lack of legitimacy of the Court.

Senator Zdeněk Hraba (ODS), criticizing the so-called “transgender ruling” of the Constitutional Court stated that the Court is “on a wave of activism”, even though the criticism concerned a single decision.Facebook (24 January 2024) <https://www.facebook.com/photo.php?fbid=849201000352678&id=100057883579771&set=a.626753555930758> accessed 15 November 2025.⁷⁵⁾ In doing so, he moved from case-specific criticism to a broader claim about the Court as such without any evident basis. Similarly, Aleš Juchelka (ANO) stated regarding the ruling on early retirement pensions that he “disagrees with the Constitutional Court as such”‘Ústavní soud zamítl návrh hnutí ANO na zrušení novely’ (Český rozhlas Radiožurnál, 18 June 2025).⁷⁶⁾. Although these may appear to be subtle nuances in wording, they matter in terms of what their message towards public is.

2.1.3 The target of the criticism—individual judges

Criticism directed at individual judges calls for caution, as it is precisely in this context that the line between legitimate criticism and abusive criticism becomes thin.Jones (n 14) 3; Kosař (n 5) 36.⁷⁷⁾ Particularly objectionable are attacks that extend into a judge’s private life rather than focusing on their professional conduct.See Sabou and Pircalab v Romania App no 46572/99 (ECtHR, 28 September 2004) [39].⁷⁸⁾

The risk that a judge will be criticised in connection with a particular decision naturally increases when acting as the rapporteur. This, however, already reveals the main problematic aspect of such criticism: it is, to some extent, misleading. With few exceptions, decisions of the Constitutional Court are not the product of a single judge to whom they can be attributed.Although the role of the judge rapporteur may be significant in the drafting of a decision, the Czech Constitutional Court decides in three-member panels and in the fifteen-member plenary. A decision is therefore never issued by a single judge alone, except in certain procedural matters. See Jan Chmel, ‘Zpravodajové a senáty: Vliv složení senátu na rozhodování Ústavního soudu České republiky o ústavních stížnostech’ (2017) 4 Časopis pro právní vědu a praxi 739.⁷⁹⁾

The danger of personalized criticism lies in the fact that it strips the court of its institutional character and ties the legitimacy of adjudication too closely to individual judges.Scott S Boddery, Laura P Moyer and Jeff Yates, ‘Naming Names: The Impact of Supreme Court Opinion Attribution on Citizen Assessment of Policy Outcomes’ (2019) 53 Law & Society Review 353, 354.⁸⁰⁾ This, in itself, may not be particularly serious. In contemporary settings, public perceptions of courts are often shaped by the individual judges.See Suzanna Sherry, ‘Our Kardashian Court (and How to Fix It)’ (2020) 106 Iowa Law Review 181.⁸¹⁾ However, this “personalization of legitimacy” when combined with criticism directed at individual judges, may reinforce the perception that the Court’s decision-making is determined by its composition and by the personal or even political views of its members.Boddery, Moyer and Yates (n 82) 354.⁸²⁾

Criticism of an individual judge is not necessarily abusive in every case. It may be legitimate, especially where it concerns public conduct, prior statements raising questions about independence, or other matters genuinely relevant to judicial office. However, where no such reason exists, targeting an individual member of the bench, particularly within a collegiate body, may signal that the criticism functions as a proxy attack on the Court as a whole.

An example might be the reaction to the pension indexation ruling by Berenika Peštová (ANO), who stated that hearing the reasoning of judge rapporteur Vojtěch Šimíček reminded her of the speech of the infamous communist prosecutor Josef Urválek.‘Odůvodnění soudu? Vybavil se mi Urválek, šokovala Peštová. Rezignujte, vzkázal Síkela’ (CNN Prima News, 24 January 2024) <https://cnn.iprima.cz/oduvodneni-soudu-vybavil-se-mi-urvalek-sokovala-pestova-rezignujte-vzkazal-sikela-423671> accessed 15 November 2025.⁸³⁾ This example shows how criticism can move from addressing a decision to personalizing the attack.

Another example can be found in the reaction of then Prime Minister Andrej Babiš to the 2021 electoral ruling. Referring to the President of the Constitutional Court, Pavel Rychetský, he stated that Rychetský “himself annulled the electoral law that he had helped to draft and defend”‘Babiš: Ústavní soud se snaží ovlivnit volby, otřásá důvěrou v ústavní pořádek’ (iROZHLAS, 3 February 2021) <https://www.irozhlas.cz/zpravy-domov/andrej-babis-volebni-zakon-ustavni-soud-snemovni-parlamentni-volby-2021_2102031431_ako> accessed 15 November 2025.⁸⁴⁾. This formulation illustrates the same problematic dynamic of personalization. The criticism attributes a decision of the fifteen-member plenary to a single individual, thereby misrepresenting the collective nature of constitutional adjudication. At the same time, it seeks to discredit that individual judge and, through him, to cast doubt on the legitimacy of the Court’s decision as a whole. Criticism of the President of the Court may, to some extent, be more understandable, given the visibility of that position and its role as a public face of the institution. Even so, such criticism risks reinforcing a misleading personalization of adjudication if it presents collective decision-making as the act of a single individual.

2.2 The author of the criticism

Criticism may come from presidents, independent senators, or even non-parliamentary yet influential political figures etc. The aim in this sub-chapter is not to offer an exhaustive typology, but to draw attention to a basic distinction: depending on who the speaker is, the weight of the criticism and its likely consequences differ. This is most clearly illustrated by the contrast between government and opposition politicians.

2.2.1 The author of the criticism—government politicians

As explained above, government actors are often the primary subjects of constitutional review, and their criticism therefore comes from those whose actions are often called upon to assess. It also carries greater institutional weight, as criticism voiced by members of government is more likely to be perceived as speaking on behalf of the state itself.Brandon L Bartels and Eric Kramon, ‘Does Public Support for Judicial Power Depend on Who is in Political Power? Testing a Theory of Partisan Alignment in Africa’ (2020) 114 American Political Science Review 144. This is also relevant from the perspective of international perceptions of judicial independence. Abusive criticism of the constitutional court by government politicians may raise concerns about the country’s adherence to the rule of law, which is monitored by the European Union.⁸⁵⁾ In addition, the government possesses the greatest capacity to translate such criticism into concrete interference with judicial independence. For these reasons, criticism coming from government politicians deserves attention.This applies not only to members of the government in a strict sense, but also to government politicians in a broader sense.⁸⁶⁾

That does not mean that any criticism coming from the government is inherently abusive. As mentioned, the relevance of the factors identified in this chapter lies in their interaction. Where criticism coming from government politicians is coupled with elements such as delegitimizing claims, partisan framing, or implicit calls for non-compliance, its potential to strategically undermine public confidence in the Court is increased.

A typical example of several of these dangers is the criticism voiced by the then Prime Minister Andrej Babiš (ANO), who, in response to the electoral ruling of 2021, stated that the Constitutional Court was attempting to influence the political situation in the country.‘Babiš: Ústavní soud se snaží ovlivnit volby, otřásá důvěrou v ústavní pořádek’ (iROZHLAS, 3 February 2021) <https://www.irozhlas.cz/zpravy-domov/andrej-babis-volebni-zakon-ustavni-soud-snemovni-parlamentni-volby-2021_2102031431_ako> accessed 15 November 2025. ⁸⁷⁾ In doing so, Babiš spoke not only from the position of Prime Minister, but also made use of the platform of an official press conference, which is problematic for reasons that will be explained below.

His statements not only may have triggered an unprecedented wave of public criticism directed at the Constitutional Court but also may have shaped the perceived legitimacy of the electoral law subsequently adopted by the Chamber of Deputies in response to the Court’s ruling, and, by extension, the perceived legitimacy of the elections themselves.See Hodulík (n 60).⁸⁸⁾

This example highlights what makes government criticism especially sensitive. Government actors are not only commentators on judicial decisions, but also those responsible for their implementation. Their statements may therefore signal not only disagreement, but also how a decision will be treated in practice.

2.2.2 The author of the criticism—opposition politicians

Criticism voiced by opposition politicians is generally easier to justify.Kosař (n 5) 29.⁸⁹⁾ Contestation is part of the democratic role of the opposition, whose legitimate strategy includes submitting motions to the constitutional court for the review of government legislation.White and Ypi (n 51) 783.⁹⁰⁾ At the same time, opposition may express disagreement with decisions on these matters.

This, however, does not mean that criticism from the opposition is unproblematic. It becomes more troubling where it ceases to reflect genuine disagreement and instead forms part of a broader political strategy. In particular, opposition actors may use constitutional litigation, and the political criticism surrounding it, as a means of increasing political visibility and, in some cases, of externalizing political conflict.Aylin Aydin-Çakir, ‘Judicialization of Politics by Elected Politicians: The Theory of Strategic Litigation’ (2017) 67 Political Research Quarterly 489. See also Jana Ondřejková, ‘Zkoumání vztahu Ústavního soudu a Parlamentu prostřednictvím přezkumu ústavnosti zákonů iniciovaného skupinami poslanců a senátorů – stará úskalí a nové možnosti’ (2025) 3 Právník 215.⁹¹⁾

Even if recourse to constitutional review is a natural feature of political competition, concern arises where such engagement is instrumentalized as part of a broader narrative aimed at delegitimizing the Court. In such cases, political actors may even anticipate an adverse ruling before filing a motion and subsequently use it to portray the Court as aligned with the status quo. This risk is pronounced in periods surrounding the appointment of new constitutional judges or during election campaigns, when criticism is more likely to be strategically timed and accompanied by more frequent referrals to the constitutional court.Ibid.⁹²⁾ This again illustrates that the concern lies not in criticism as such, but in how it interacts with other factors to reshape the Court’s perceived role within the political system.

2.3 Context

Another important factor in assessing the potential abusiveness of political criticism is the context in which it is expressed, especially its timing and the forum through which it reaches the public.See Kosař (n 5) 38–40.⁹³⁾ Even criticism that is not so problematic in substance may become more troubling when voiced at a particular moment or through a particular channel.

2.3.1 Timing

Political criticism most often arises in response to particular decisions of the Constitutional Court. It may, however, also appear while a case is still pending. Such criticism calls for caution, because it may exert pressure on the Court before it has decided and thereby affect its independence more directly than criticism voiced afterwards.

An example can be found in the criticism voiced by then President Miloš Zeman, who publicly criticized the Constitutional Court’s prospective decision in the electoral law case of 2021.Judgment of 3 February 2021, Pl. ÚS 44/17.⁹⁴⁾ President Zeman anticipated a particular outcome and condemned it before the Court had ruled; that outcome was ultimately confirmed. The concern with such criticism is that it may serve a double function: it may place the Court under anticipatory pressure, and at the same time prepare the ground for later political criticism.

Even where the Court ultimately decides differently, such statements may still leave an impression of bias and contribute to the erosion of the reservoir of goodwill.Addo (n 3) 13.⁹⁵⁾ This was visible, for example, in the criticism voiced by some politicians in 2025 before the Constitutional Court’s decision on the so-called undisclosed coalitions.Judgment of 24 October 2025, Pl. ÚS 36/25.⁹⁶⁾ Although the Court did not ultimately rule in the manner its critics—especially from the then opposition—had warned against, the impression of politicization may nevertheless linger. For instance, Miroslav Ševčík (Trikolora), stated before the decision that “it is interesting that the Constitutional Court will suddenly deal with this, and we know who appointed the constitutional judges, so anything can be expected—perhaps we will witness a Romanian scenario”‘Třeba zažijeme rumunský scénář, reagoval Ševčík na soud kvůli možným koalicím.’ (iDnes, 21 September 2025) <https://tv.idnes.cz/domaci/volby-sevcik-partie.V250921_124741_idnestv_vrja> accessed 15 November 2025.⁹⁷⁾. Put simply, criticism voiced before the Court’s decision and before its reasoning is known is a warning sign that the criticism may be a part of political strategy to weaken the Court’s legitimacy.

Even after a decision has been delivered, however, timing still matters.Kosař (n 5) 43. ⁹⁸⁾ As discussed above, immediate political reactions are often the first frame through which the public encounters a judgment, and they may therefore shape the initial perception of its legitimacy. This is one reason why early reactions call for restraint. The public response to the pension indexation ruling suggests that criticism voiced in the immediate aftermath of a decision may have contributed to a broader wave of hostile reactions.‘Podle Babiše se Ústavní soud snaží aktivně ovlivňovat situaci v zemi. Rychetský to odmítá’ (ČT24, 3 February 2021) <https://bit.ly/4aOImua> accessed 15 November 2025.⁹⁹⁾

2.3.2 Platform

Political criticism may appear in parliament, at an official press conference, in the media, or on social networks. The same statement may carry a different meaning and institutional weight depending on where it is made.Addo (n 3) 12.¹⁰⁰⁾

Parliament is the natural arena of political contestation, and criticism voiced there may more easily be understood as part of ordinary democratic debate. However, the situation is different where criticism is voiced through official channels tied to state authority. Government press conferences, ministerial websites, or formal speeches do not merely transmit political disagreement; they communicate it with the weight of public office. Yet again, Andrej Babiš’s criticism of the 2021 electoral ruling, voiced at an official press conference in his capacity as Prime Minister, illustrates this difference well.‘Babiš: Ústavní soud se snaží ovlivnit volby, otřásá důvěrou v ústavní pořádek’ (iROZHLAS, 3 February 2021) <https://www.irozhlas.cz/zpravy-domov/andrej-babis-volebni-zakon-ustavni-soud-snemovni-parlamentni-volby-2021_2102031431_ako> accessed 15 November 2025.¹⁰¹⁾

In practice, much political criticism now circulates through media and social networks, which lack many of the institutional correctives present in parliamentary debate and tend to reward simplified and polarized communication. This does not make such criticism inherently abusive, but it may amplify its reach, detach it from context, and shape public perceptions of the court in ways that are difficult to correct. For that reason, political actors must take into account not only what they say, but also how easily and widely their statements may spread and how they may be received once removed from their original context.Kosař (n 5) 41.¹⁰²⁾

2.3.3 Frequency

An isolated critical remark may remain within the bounds of legitimate political debate, even if it is sharp. However, when the same claims about a constitutional court are repeated often enough, they may begin to shape public perception regardless of their factual basis.Gandur, Chewning and Driscoll (n 14) 127. See also Hutchinson (n 20) 12–14.¹⁰³⁾

This is particularly visible where the same political actors repeatedly litigate before the Court and repeatedly lose. In such cases, even criticism that is relatively mild in isolation may, through repetition, create the impression that the court is systematically biased or politically aligned, and is more likely to affect institutional legitimacy than isolated remarks.Petrov (n 49) 1196.¹⁰⁴⁾

For that reason, frequency or repetition may indicate that criticism is no longer simply reactive, but forms part of a broader effort to portray the Constitutional Court in a particular light. Gibson and Caldeira’s metaphor of “death by a thousand cuts” captures this dynamic well: the danger lies in the cumulative effect of repeated, namely partisan framing over time”Nelson and Gibson (n 19) 1516.¹⁰⁵⁾.

3. Recognizing abusive criticism: content and purpose of the criticism

The decisive question in assessing political criticism of the Constitutional Court is ultimately its content and purpose. The previous sections identified factors that may raise concerns about its possible abusive effects. Yet these factors are not sufficient on their own. What matters most is what the criticism does: whether it contributes to accountability, whether it gradually reframes the Court as a political actor, or whether it directly attacks its legitimacy.

This is why content and purpose have to be considered together. Content matters because the distinction between acceptable and abusive criticism depends in part on what the criticism engages with and in what manner. Purpose matters because even criticism that appears acceptable may still function, in context, as part of a broader effort to delegitimize the court.The subjective intent behind political criticism cannot be directly established. This article therefore does not attempt to prove intent of the individual critics but instead identifies combinations of contextual factors that may indicate that criticism functions that way—as part of a broader political strategy.¹⁰⁶⁾ The line between acceptable and abusive criticism therefore cannot be drawn simply by asking whether a statement is true or falseSee Prager and Oberschlick v Austria App no 15974/90 (ECtHR, 26 April 1995) [34].¹⁰⁷⁾, or sharp or mild.

For that reason, political criticism operates along a spectrum. At one end lies criticism that, even if sharp, remains compatible with the court’s institutional legitimacy (substantive criticism). At the other lies criticism that seeks to deny that legitimacy altogether (abusive criticism). Between these poles stands a more ambiguous and, for the purposes of this article, particularly important category: criticism that does not openly reject the court’s authority but gradually reframes it as an ordinary partisan actor (politically framed criticism).

3.1 Substantive criticism

Substantive criticism is the form of political critique most closely connected to accountability. It is generally compatible with institutional legitimacy because it does not, as a rule, contest the Court’s independence or authority as such.Addo (n 3) 11.¹⁰⁸⁾ It challenges what the Court decided, not its entitlement to decide.

A legislature may strongly disagree with a judgment striking down legislation, and such disagreement may be forceful, yet still remain within the bounds of acceptable criticism. What matters is whether mutual toleration is preserved—that is, whether adverse decisions are treated as part of the constitutional process, rather than as grounds for attacking the integrity or legitimacy of the judiciary.Velasco-Rivera (n 20) 300.¹⁰⁹⁾

Substantive criticism typically addresses the reasoning, legal conclusions, or institutional practice of the court. It may also point out that a decision overlooked an objectively relevant factor—for example, by relying on outdated data, failing to reflect established legal practice, or neglecting counterarguments. It may further take the form of political actors aligning themselves with the views expressed in dissenting opinions of the Court.‘Nesouhlasíme s rozhodnutím Ústavního soudu, který posvětil snížení důchodů‘ (SPD.cz, 30 January 2024) <spd.cz/nesouhlasime-s-rozhodnutim-ustavniho-soudu-ktery-posvetil-snizeni-duchodu/> accessed 15 November 2025. ¹¹⁰⁾ Such critique directly serves accountability by encouraging the Court to engage with the broader implications of their decisions.

This can be illustrated by the reaction of then-opposition MP Alena Schillerová (ANO) to the ruling on early retirement pensions, when she stated: “I will not engage in cheap shots against the Constitutional Court. That is why every one of my statements begins with the premise that the decision must be respected. However, the Constitutional Court is not a sacred cow that cannot be criticised.” The statement nicely shows the acknowledgment of the distinction between challenging the ruling on one hand and the efforts to delegitimize the Court on the other hand.

Substantive criticism may also concern procedural aspects of decision-making. Complaints about delays, lack of transparency, or other systemic deficiencies are legitimate, provided they are fact-based and directed at improving the court’s functioning (accountability). The substantive character of such criticism lies in its verifiability. Andrej Babiš’s criticism of the length of the Constitutional Court’s deliberation in the electoral law case, and of the timing of its ruling, illustrates that a political statement may strongly affect public perceptions of the Court while still remaining, in principle, verifiable and oriented toward accountability.‘Babiš: Ústavní soud se snaží ovlivnit volby, otřásá důvěrou v ústavní pořádek’ (iROZHLAS, 3 February 2021) <https://www.irozhlas.cz/zpravy-domov/andrej-babis-volebni-zakon-ustavni-soud-snemovni-parlamentni-volby-2021_2102031431_ako> accessed 15 November 2025.¹¹¹⁾

Therefore, the mere fact that criticism affects the Court’s public standing (legitimacy) does not make it abusive. The relevant question is whether the criticism is oriented toward accountability and improvement, or whether it seeks to transform disagreement with a decision into distrust of the institution itself.Addo (n 3) 11.¹¹²⁾

3.2 Politically framed criticism

A more difficult and, for the argument of this article, more significant category is criticism that may be described as politically framed. These are statements that do not merely express disagreement with a judicial decision but interpret that decision as evidence that the Court itself acts as a partisan political actor.See Hutchinson (n 20) 3.¹¹³⁾ Such criticism does not always deny the Court’s legitimacy outright. Its danger lies in the fact that it alters—often gradually—the way in which the Court is perceived.Petrov (n 49) 1196. ¹¹⁴⁾

As discussed above, constitutional courts inevitably decide issues with political consequences, and it is not inherently problematic to point out that a decision has political implications or affects particular political actors. Nor is it illegitimate, in principle, to criticize a court for adopting an overly activist approach or for entering the political sphere. The problem arises, however, where criticism treats the very exercise of powers necessarily entrusted to the Court as evidence of partisanship—for example, where a decision on the constitutionality of legislation enacted by the government majority is framed as inherently political for that reason alone.

This is illustrated for example by the criticism voiced after the pension indexation ruling cited above. Kateřina Konečná (STAČILO) stated that “today we learned that the Constitutional Court will clearly approve anything this government does”Facebook (24 October 2024) <https://bit.ly/4svmYQS> accessed 15 November 2025.¹¹⁵⁾. In a similar vein, representatives of the Trikolora movement portrayed the Court’s ruling as evidence that it preferred the current government to its political opponents and had thereby disqualified itself from respect.The vice-president of Trikolora stated: “This was the first truly serious decision by the Constitutional Court, which had already been in large part reshaped by President Pavel and the public was eager to see what kind of message the guardians of the constitution would send. And they did send a message. A message that, in the eyes of a significant portion of our public, disqualifies them. (…) It must not, like a feather sticking out of a couch, be apparent that the Constitutional Court prefers Fiala’s thieving government to the five-party coalition that has robbed Czech pensioners.” ‘Borec. Vstoupil mezi všechny ty chcimíry a dezoláty. Rakušanovy výjezdy: Plán odhalen’ (Parlamentní listy, 23 January 2024) <https://bit.ly/3LzBYwz> accessed 15 November 2025.¹¹⁶⁾ Statements of this kind do not merely say that the Court was wrong. They suggest that the Court’s role is reducible to the confirmation of one side’s political interests. The latter example even comes close to openly abusive rhetoric, since it implies that a single decision may deprive the Court of the respect it should command in the future.

In response to the very same decision, Alena Schillerová stated that the Court had decided “in favour of the five-party coalition”Facebook (24 January 2024) <https://www.facebook.com/SchillerovaAlena/videos/733737598855904/> accessed 15 November 2025.¹¹⁷⁾. That statement is strikingly borderline. Taken in isolation, it is not objectionable in the same way as a statement claiming that the Court is simply an instrument of the government. It refers to the political effect of the ruling, not necessarily to the motives of the Court. Still, such statements may become more problematic where they are embedded in a broader narrative suggesting that politically consequential outcomes are themselves evidence of partisan adjudication. A similar dynamic can be seen in claims that there is a “double standard” in the Court’s decision-making.Youtube, Patrik Nacher (4 February 2025) <https://www.youtube.com/watch?v=FCivbl47PQs> accessed 15 November 2025.¹¹⁸⁾ The relevant concern, then, is not the mere description of who politically benefited from the decision, but the use of that description to imply that the Court acted as a political ally rather than as a constitutional adjudicator.

Precisely because politically framed criticism often appears plausible, it may be more dangerous over time than overtly abusive language. It normalizes the idea that the Court is just another political actor and thereby changes the terms on which its decisions are accepted—increasingly depending on whether the decision aligns with one’s political preferences. As noted above, this shift does not necessarily result in an immediate decline in public trust, particularly when the Court’s decisions happen to align with the preferences of the prevailing political majority. The erosion of legitimacy may instead become visible only over time, for example following changes in the political landscape or in the composition of the Court.

3.3 Abusive criticism

At the far end of the spectrum lies criticism that directly attacks the legitimacy of the Court or its judges. This is criticism that no longer seeks to hold the institution accountable, nor merely frames it in political terms, but instead treats it directly as unworthy of respect, obedience, or institutional authority.See also Hutchinson (n 20) 14–16.¹¹⁹⁾ Calls for non-compliance with judicial decisions represent a serious stage in the erosion of institutional legitimacy.

This form of criticism is not unfamiliar even in the Czech context. One example, although not a clear-cut instance of abusive criticism, is the statement made by the then Minister of Justice, Pavel Blažek (ODS), during the debate on the state budget in the Chamber of Deputies on 24 October 2024: “I, too, declare that I do not consider the existing case law of the Constitutional Court regarding judges’ salaries to be constitutional. The latest judgment of the Constitutional Court leads me to be prepared to enter into such a dispute.”České Noviny (24 October 2024) <https://www.ceskenoviny.cz/zpravy/2586390> accessed 15 November 2025.¹²⁰⁾ What makes this statement troubling is not its sharpness, but the suggestion that the Court’s authority may cease to be binding where it conflicts with the speaker’s own view.

Abusive criticism often takes the form of questioning of basic competence or integrity, unfounded imputations of hidden motives, or language suggesting that the Court is acting in bad faith. Particularly problematic are vague or insinuating accusations, since they are difficult to disprove and may nevertheless weaken the public trust. An example may be the reaction of the then Minister of Justice, Marie Benešová, to the Constitutional Court’s 2021 electoral law ruling, when she asked: “What’s behind it? To whom did someone commit, who promised what to whom?” and pointed out that the judges “might have been promised something”. The problem with such rhetoric lies not only in its content, but in the way it invites suspicion without assuming the burden of proof.‘Benešová nebude čelit kárnému řízení za výroky o Ústavním soudu’ (Česká justice, 6 August 2021) <https://www.ceska-justice.cz/2021/08/benesova-nebude-celit-za-sve-vyroky-o-ustavnim-soudu-karnemu-rizeni-pred-cak/> accessed 15 November 2025.¹²¹⁾

More difficult to assess are proposals to alter the Court’s powers, composition, or institutional design. Such proposals are not inherently abusive. Calls for institutional reform may reflect the fact that certain arrangements have proved dysfunctional in practice. The concern arises where they are advanced as an immediate response to a disliked decision. At this point, the interaction of the factors discussed above becomes visible again. When criticism by political actors, voiced in a charged context and framed in terms that question the Court’s role, converges with proposals for institutional change, it begins to signal that criticism may translate into concrete institutional action—as a tool of abuse.

Such concerns have also appeared in the rhetoric of the SPD movement, which, in response to the pension indexation ruling, raised in its press release the question whether Members of Parliament should have stronger powers in the selection of Constitutional Court judges.‘Nesouhlasíme s rozhodnutím Ústavního soudu, který posvětil snížení důchodů’ (SPD.cz, 30 January 2024) <spd.cz/nesouhlasime-s-rozhodnutim-ustavniho-soudu-ktery-posvetil-snizeni-duchodu/> accessed 15 November 2025.¹²²⁾

Abusive criticism need not always be spectacular or openly anti-constitutional. It may also consist in repeated and seemingly ordinary statements that, taken together, invite the public to treat the court as an institution whose authority is conditional, optional, or politically disposable. The sign that criticism has crossed this line is therefore not simply its tone, but the fact that it no longer contests what the court decided and instead calls into question why its decisions should be accepted at all.

Conclusion

This article has proposed a framework for thinking about when political criticism of constitutional courts becomes problematic from the perspective of institutional legitimacy. Its central claim is that the decisive issue is not criticism as such, but the point at which criticism ceases to contribute to accountability and begins instead to weaken the conditions under which constitutional courts can function as legitimate institutions.

The article has argued that this problem should not be approached as a simple binary. Political criticism operates along a spectrum: from substantive criticism that remains compatible with institutional legitimacy, through politically framed criticism that gradually recasts the court as a partisan actor, to abusive criticism that denies the court’s authority more directly. The greatest long-term risk lies not only in openly abusive attacks, but also in the gradual normalization of rhetoric that presents constitutional courts as ordinary participants in political conflict.

At the same time, the article has sought to show that the legitimacy of constitutional courts is shaped by a persistent tension between independence and accountability. Constitutional courts must remain independent enough to perform their counter-majoritarian role, yet accountable enough to exercise that role legitimately. Political criticism forms part of that tension.

The examples discussed in this article further illustrated the variety of forms such criticism may take and showed that the boundary between acceptable and abusive criticism cannot be captured by reference to a single factor. A more systematic empirical study of political criticism of the Constitutional Court in the Czech context would therefore be a natural next step.

The framework developed here is not meant to produce mechanical classifications. Its purpose is to identify circumstances in which closer scrutiny is warranted—especially where criticism shifts from contesting decisions to reshaping the perceived role of the court. Recognizing these dynamics early matters because their effects are often cumulative. Even where political criticism does not immediately reduce public trust, it may still contribute, over time, to a perception of constitutional courts as actors deserving respect only when their decisions align with prevailing political preferences. Once that shift occurs, both the legitimacy and the independence of constitutional adjudication become more fragile.