2015, Vol. 13 No. 1, 200-218 doi: 10. 1093/icon/mov003

3. Assessing post-Soviet courts in pure politics 
The state of independence of post-Soviet courts and their institutional memory of
political attacks, as described in the previous section, has predetermined the distinc-
tive mode in which these courts afford to involve in politics. The courts’ access to politi-
cally sensitive decision-making is limited strictly to those questions that are not vital to 
dominant political interests.
22
“Pure politics” or “mega-politics” is defined by Hirschl as core political controversies 
that define and often divide polities and should therefore be free from judicial deci-
sion-making.
23
Hirschl includes several categories of cases under this term: electoral 
processes, executive prerogatives of macroeconomic planning or national security 
issues, fundamental restorative justice issues, as well as formative collective identity 
and nation-building processes.
24
As highlighted in the previous section, judicial inter-
vention in these areas is not discouraged in formerly Soviet countries, but, on the con-
trary, is often directly prescribed by the law. In practice, post-Soviet courts have not 
hesitated to make decisions which belong to the realm of pure politics, as described 
above. The irony, though, is that such “political” activity of post-Soviet courts rarely 
implies any consistent empowerment of the courts.
In fact, the field for judicialization of post-Soviet “pure politics” is extremely thin. 
The record of judicial involvement in post-Soviet politics shows that higher courts get 
meaningfully activated only in situations witnessing a true political competition and 
uncertainty about the winner in the competition.
25
 This leads to the first observation 
of judicial involvement in power politics in these polities: judicial decision-making 
21
Freedom House, 
Map of Freedom
(2013), 
available at
http://www.freedomhouse.org/sites/default/files/
Map%20of%20Freedom%202013%2C%20final.pdf
.
22
Lee Epstein, Jack Knight, and Olga Shvetsova, 
The Role of Constitutional Courts in the Establishment and 
Maintenance of Democratic Systems of Government
, 35 
l
aw
& S
oc
’
y
R
ev
.
164 (2001).
23
Ran Hirschl, 
The New Constitutionalism and the Judicialization of Pure Politics Worldwide
, 75(2) 
f
oRdhaM
l. R
ev
. 
721, 721 (2006).
24
Id
.
25
Armen Mazmanyan, 
Constrained, Pragmatic, Pro-democratic: Appraising Constitutional Review Courts in 
Post-Soviet Politics
, 43(4) 
c
oMMunISt
& P
oSt
-c
oMMunISt
S
tud
.
409 (2010).
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13 (2015), 200–218
on essential political issues is incidental. The incidents of such decision-making, to 
review, are predominantly limited to situations of political competitiveness which are 
extremely rare in the political regimes of the region. Except for the mentioned situa-
tions, courts make politically important decisions also in another situation: as agents 
of politicians who exploit the courts for different strategic purposes. This leads into the 
second observation on “judicialization of pure politics” in the former Soviet area: judi-
cial intervention in politics is more often than not a product of direct political instruc-
tion or manipulation. The concluding observation on post-Soviet “juducialization” is 
follows from the above two: occasional judicial review of politically significant mat-
ters, most of which amount to instances of uncovered political exploitation, cannot 
testify for any meaningful transfer of power from the politicians to judges. In effect, 
this conclusion may challenge any claims of meaningful judicial empowerment in 
these countries.
A brief survey of the most significant and noteworthy examples, both old and new, 
of judicial politics in the post-Soviet zone can better illustrate the above-described 
limits on judicial action in politically sensitive cases. Except for the golden age of the 
Russian Constitutional Court’s famous activism of 1991–1993, when Russia’s con-
stitutional judiciary unusually enjoyed significant independence and popularity, the 
history of constitutional jurisprudence in the entire post-Soviet region provides few, 
if any, cases of deviation from the patterns of the judiciary’s empowerment depicted 
above. In other words, all cases examined clearly confirm political partisanship, affili-
ation, or manipulation behind each and every instance of apparently brave judicial 
decision-making in politically sensitive situations. Those cases that do not are decided 
in exceptional and very rare situations of clear or explicit uncertainty about the out-
come of an emerging fight for political power. Any of these categories plainly confirm 
that the judiciary’s political empowerment is more likely than not a false impression: 
in reality, it is a substitute or a deceptive cover for direct political action by the domi-
nant power-holder, or is clearly incidental and rare to an extent that it cannot be taken 
as a true pattern of judicialization.