Spanish judicial hierarchy: political tribunals

It is not an exaggeration to say that the judges at the top of the Spanish judiciary are constantly engaging in politics. This becomes evident when they interpret the law according to their own pre-democratic ideological bias, twisting its meaning, denying its application, inventing concepts (violence, terrorism), or arbitrarily deciding on sentences (Statute of Autonomy, amnesty law, the sentencing of the leaders of the Catalan independence movement). The trial of the Attorney General is just the latest example.

This is nothing new in comparative politics. Judges under Nazism, Fascism, and Stalinism also engaged in politics. In totalitarian and authoritarian states, judges always play a political role. During the rise of Nazism, Carl Schmitt spoke of the "defense of the Constitution." He was one fakeWhat he defended was the State, Germany, and always in authoritarian nationalist terms. This is what members of the Spanish judicial leadership do. They find it very difficult to hide behind the pretense of applying the law neutrally, as if they lived in a kind of paradise isolated from legal positivism.

This also affects the courts of some weakened democracies, far removed from the legal culture found in Canada or most Western European states (the US is more questionable today). They are closer to Turkey, Hungary, Hong Kong, or Russia. In the case of the Second Chamber (Criminal Chamber) of the Spanish Supreme Court, this is easy to see, as in specific cases before the National Court or the Court of Auditors. However, the politicization of the Spanish justice system also affects the Constitutional Court.

In a recent political and statistical study by Joan-Josep Vallbé, Daniel Cetrà and Marc Sanjaume-Calvet, Constitutional Court and central power: an empirical analysis (IEA, 2025), analyzes the rulings issued by the Constitutional Court between 1981 and 2023 that resolve conflicts concerning state and regional regulations. This analysis, which will soon be published in theEuropean Journal of Political Research, part of its own model with four possible scenarios depending on whether the three main actors involved –TC, central government and regional governments– are politically aligned or not.

Additionally, two factors are taken into account. First, the high level of conflict between territorial levels (including 1,333 rulings on appeals and questions of unconstitutionality, jurisdictional disputes, and appeals for protection of fundamental rights). The unit of analysis is the resolution of the rulings (a single ruling may include several conflicting resolutions). Second, the hypothesis is considered that there may be a more centralizing tendency among conservative courts, as well as what happens when the central government needs the support of minority parties to obtain a parliamentary majority.

When the model's hypotheses are tested, the conclusions are clear. First, although most of the challenged regulations are those of the central government (63%), the Constitutional Court has tended to favor it: the probability of a regional regulation being declared unconstitutional is 55%, compared to 23% for a state regulation.

Secondly, cases initiated by the central government have a 68% probability of success, compared to those initiated by regional governments (31%). Cases initiated by ordinary courts have an even lower success rate.

Third, when the Constitutional Court and the central government are politically aligned, the centralizing effect of its rulings is most pronounced: a greater predisposition to overturn regional laws rather than questioning national laws. Conversely, when the political alignment is between the Constitutional Court and the regional government, no significant effect is observed.

Fourth, one factor influencing the Constitutional Court is its ideological composition. When it is dominated by a conservative majority, the likelihood of declaring regional laws unconstitutional increases, especially those of Catalonia or the Basque Country. Here, centralization goes hand in hand with a strong Spanish nationalist component.

Fifth, it is noted that when the central government depends on minority parties to obtain a majority in the Spanish Parliament, and especially when there is ideological congruence between the Constitutional Court and the central government, the probability of the Constitutional Court declaring a state law unconstitutional increases, while it significantly decreases that it will do so with an autonomous law.

The general conclusion is that the Constitutional Court's behavior is subject to strategic, rather than institutional, incentives, and that it adapts to the prevailing political context. It generally does not act as a stable counter-majoritarian institution, but rather is marked by a clear centralizing tendency, as well as by the political compositions of the central and regional governments.

In other words, the Constitutional Court does not act as an impartial institution. This fact delegitimizes its rulings—regardless of any purely technical legal arguments—erodes its arbitration function, encourages political disaffection—especially in the cases of Catalonia and the Basque Country—reveals the consequences of the lack of pluralism in its composition, and strikes at the very heart of the legitimacy of the autonomous system, which is even more poorly developed and mired in the continuity of Francoism within the judiciary.

All of this represents yet another dysfunction of a deficient political transition in liberal democratic terms, as well as a serious erosion of a precarious rule of law and a deficient democracy.