What Exactly Is Political About Constitutional Adjudication?

Abstract

The article argues that the frequently asked question as to whether constitutional courts or apex courts with the power of judicial review are political or legal institutions and whether judicial review is a political or a legal activity are insufficiently differentiated. The question should rather be in which way and to what extent they are legal or political. One would then distinguish between (1) the object of judicial review, (2) the effect of judicial review and (3) the process of adjudicating. The object and the effect of judicial review are inevitably political. The question is whether this holds also true for the process of adjudicating. The discussion of this question is in the center of the article.