The Schmitesen Court: The Question of Legitimacy

In recent years, a new creature has emerged on the institutional landscape: the Schmitesen Court. This Court is the end-product of combining the positions presented by Carl Schmitt and Hans Kelsen in their famous debate on “Who is the Guardian of the Constitution?” The Schmitesen guardian is Kelsen’s designated guardian – the constitutional court – possessing the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for his guardian – the president. In this paper, I focus on the Schmitesen Court’s source of legitimacy that is very different from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Kelsen viewed legal expertise as the guardian’s source of legitimacy, while Schmitt viewed public support as the guardian source of legitimacy. After analysing these two positions, I explain why it was vital for the Schmitesen court to harness public support as its source of legitimacy. I proceed by examining how the Schmitesen court model manifests itself in three case studies. After describing how the understanding of judicial legitimacy has changed in the US, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these two courts stems not only from their adoption of the Schmitesen Court’s understanding of judicial legitimacy but also from the place the Weimar experience occupied in this process. I conclude by discussing how these three case studies reveal inherent difficulties in the Schmitesen Court model.