Verfassungsgericht unter Beschuss

Poland’s Constitutional Court Conflict: A Game-Theory Perspective

Prof. Dr. Christian Rieck examines Poland’s conflict over its Constitutional Court through the lens of game theory. He says he is not an expert on Poland and lacks access to Polish-language primary sources, so he presents his account cautiously and invites corrections.

His central argument is that when political actors bend or disregard institutional rules, their opponents are likely to retaliate in kind. This can create a cycle that undermines the rule of law, leaving power—not agreed procedures—to decide disputes.

The Court’s Role

Rieck describes a Constitutional Court as a democratic system’s potential “single point of failure.” If it cannot operate independently, or its rulings are viewed as politically controlled, other checks on government may become ineffective.

He speculates that the Polish government may have reasons to weaken the court, including its potential to block policies such as adopting the euro. He presents this as an interpretation, not an established motive. He also offers, explicitly as a hypothesis, that Germany’s Constitutional Court may at times have been cautious in euro-related cases partly out of concern about political backlash.

How the Dispute Developed

Rieck traces the dispute back to 2015. He says the outgoing parliament elected five judges: three to fill vacancies arising during its term and two for positions that would open later. The Constitutional Court ruled that the three appointments were valid but that the two early appointments were not.

After the election, the incoming government rejected the earlier process more broadly and elected five replacement judges, including for seats the court had found properly filled. The president then declined to swear in some of the judges, leaving competing claims to the court’s membership.

Rieck calls the outgoing parliament’s early appointments the initial breach of established rules. At the same time, he argues that the incoming government compounded the problem by rejecting even the three appointments the court had upheld.

Rieck says the later government further weakened the court by leaving vacancies unfilled. He interprets this as a possible effort to make the institution less able to function, while acknowledging that other motives may have been involved.

In 2026, parliament elected eight judges over the course of the year, but the president swore in only three. Rieck criticizes this selective approach as arbitrary. He also describes a newly appointed judge suspending the court’s president and deputy, followed by police restricting the president’s access to the courthouse. According to Rieck, the Supreme Court later overturned the suspensions, though its authority to intervene was itself disputed.

Rules, Retaliation, and Institutional Trust

For Rieck, the significance is not just who holds particular seats, but whether there is a shared commitment to follow established procedures. Laws work as coordination mechanisms, he argues, because political actors generally accept that complying with them is preferable to escalating conflict.

When each side uses creative interpretations, unilateral acts, or “fait accompli” tactics to get its way, that expectation breaks down. The court may then lose the authority needed for its judgments to be broadly accepted, with political conflict increasingly settled by whoever can enforce their position.

Possible Safeguards

Rieck urges political groups not to defend institutional shortcuts simply because they benefit their own side. He suggests several possible safeguards:

• Requiring a two-thirds parliamentary majority to elect constitutional judges.
• Considering direct public elections for such positions.
• Barring judges from recent party or political involvement; he proposes a period of at least ten years.

Above all, he argues, durable institutions depend on a political culture in which actors follow rules even when doing so is temporarily against their interests.

Contributors

Presenter: Prof. Dr. Christian Rieck Other contributors: None identified.