Global spread of populism threatens acceptance of constitutional court decisions, researcher says

LAWRENCE — Populism is spreading throughout the globe, even in places where it had previously been absent. Stimulating the spread is an intrinsic distrust of the establishment.

“Not unlike what we have here in the United States, there is a growing tendency in Europe to view political elites and established institutions with a great degree of skepticism,” said Robert Rohrschneider, the Sir Robert Worcester Distinguished Professor of Political Science at the University of Kansas.

His new paper, titled “Populism and Support for Limiting the Power of Constitutional Courts: The Case of Germany,” explores how people who hold such skepticism about institutions view the arbitrating role of constitutional courts (the courts that make the ultimate decision as to what’s the law of the land). The article appears in Political Behavior.

Co-written by Mark Peffley of the University of Kentucky, the paper’s results show that citizens with populist attitudes regard the court to be just like any other political institution in terms of their willingness to restrict its authority.

“A large number of populists in Germany view these courts with the same skepticism and politicization as they view national parliament. So the idea that a constitutional court can peacefully resolve conflicts on highly salient issues goes out the window if you have people no longer accepting the court as being an apolitical institution,” said Rohrschneider, who is originally from Germany.

He said recent decisions by the court that have stirred populist controversy involve topics ranging from European integration to whether public schools should be allowed to display religious symbols such as a crucifix.

Despite the differences in legal systems between the Roman-based law in Germany and the case-based law in Anglo-Saxon democracies, similar developments are occurring in the United States, according to Rohrschneider. The recent Dobbs decision regarding abortion highlights how supreme courts can encounter public opposition regardless of the particulars of a legal system. This suggests that populist views are not limited to a specific country.

“Representative institutions are viewed as being used by established elites — the media or the intelligentsia or the educated — to their own benefit. That can give the short stick to people who do not have the opportunities decision-makers have,” Rohrschneider said.

“There are lots of people who reject what these elites do. It’s an anti-establishment orientation which spans many domains. It can be anti-vaccine or anti-policy decisions or whatever you want to fill in. This distrust was first directed against political institutions like parliaments and executives. But it now extends to judicial systems.”

To arrive at their conclusions, the researchers used public opinion and experimental studies that embedded several surveys to probe how individuals view the Federal Constitutional Court of Germany, the Bundestag (federal parliament) and the European Union. Rohrschneider said he was particularly surprised by the degree to which respondents were willing to reject constitutional rulings.

“The Constitutional Court of Germany has always been viewed with great admiration and veneration. Since 1949, when the West German Republic was founded, it was the ultimate decider about any major conflict in German society, and virtually everybody abided by it. I did not expect to see the degree of opposition to its decisions,” he said.

This is emblematic of many movements across Europe that are increasingly skeptical about the capacity of liberal democracies to produce worthwhile outcomes, he said.

“We see it in France, where Marine Le Pen almost won the last presidential election and may win the next one. We see it in Italy, where Giorgia Meloni is now the prime minister. She is from a post-fascist party, the MSI. We see it in Hungary with Viktor Orbán’s policies. We even see it in Scandinavian countries, which have traditionally always exhibited consensually oriented democratic policies,” said Rohrschneider, who has been at KU since 2008 and is an expert in comparative public opinion and comparative parties.

Ultimately, his latest research boils down to the question of whether these populist movements that are rhetorically critical of democratic processes are truly unwilling to accept institutional decision-making.

“The answer, obviously, is highly important and relevant for how we live together as societies,” Rohrschneider said. “If the answer is that you are no longer willing to abide by these decisions, then how are we going to resolve societal conflicts peacefully?”