—Kamil Joński, Economist (SGH Warsaw School of Economics), PhD in law (University of Lodz)
For decades Polish voters, politicians and lawyers differed in terms of preferred constitutional axiology, with “liberal” interpretation of the constitution clashing with right-wing “republican” one. The illiberal assault on the Polish Constitutional Tribunal during 2015-2016 gave the latter the upper hand. Now as, center-left majority attempts to restore the Tribunal, it risks producing a singular outcome that can be dubbed Schrödinger’s Tribunals – two parallel benches and “succession lines” of Tribunal justices recognized as legitimate by the two sides of political divide.
Single Text, Clashing Meanings
During the last year’s ECPS Virtual Workshop Series I argued that the Polish constitutional crisis should be interpreted as the apogee of the decades-long struggle over constitutional values and identity.
To back up this claim, I presented survey data on (i) popular support for the new Constitution, as it was adopted in 1997, (ii) support for the right-wing Law&Justice (PiS)’s “war” waged against the Constitutional Tribunal (CT), and (iii) an assessment of the CT five years after the right-wing capture.
It turned out that initial opposition to the Constitution, support for Tribunal packing and approval of captured CT all concentrated largely among self-identified rightists who regularly participate in religious services.
| Vote in constitutional referendum of May 1997 (June 1997 r.) | Side in the „war” against Constitutional Tribunal (April 2016 r.) | Assessment of the right-captured Tribunal (March 2022 r.) |
| Source: Own elaboration using CBOS data collected in monthly APIW surveys no: 85 (raw data available at: https://doi.org/10.18150/UQAKBN); 311 (https://doi.org/10.18150/4QPK8O) and 383 (raw data purchased in CBOS). | ||
The claim that current conflict over (dis)obeying Constitution is linked to the past conflict over its adoption is corroborated by voting data analysis. Across 370 territorial units (PL: powiat) the percentage of eligible voters supporting the constitution in 1997 referendum explains over 45% of variance in center-liberal R. Trzaskowski support in 2025 presidential runoff, that he ultimately lost to Law&Justice-backed K. Nawrocki.
Source: Own elaboration using National Electoral Commission data available at: https://danewyborcze.kbw.gov.pl/
These empirical findings correspond to the narrative provided by the late professor L. Morawski – a constitutional scholar and 2015 CT packing participant. As he explained during a 2017 Oxford symposium, right-wingers and their opponents disagree on “how the Polish Constitution should be interpreted” with the government favoring a “republican” reading and the opposition – a “liberal way”. For him, “the republican tradition does not reject all liberal values. [sharing] a deep respect for democracy, human rights and freedoms. But apart from this, Polish republicanism strongly emphasizes the attachment to values such as: patriotism, solidarity, a strong state as a guardian of human rights, the role of the Catholic Church and religion in public life. In political reality, it means that Polish republicans defend the traditional family model and strongly oppose abortion and so on”.
I argue that lacking the majority required to amend the Constitution, right-wingers seek control of the CT – the only institution in the legal system that can be saturated with rightist values and identity (or increase the level of this saturation). This strategy allows them to replace the “liberal” meaning of the constitution with “republican” one – without altering its text at all.
Indeed, the signature achievement of the captured CT was its abortion ban verdict of 22 October 2020 (K1/20), and in a recent judgment of 28 July 2026 (U 2/26) it attempted to block the implementation of the Supreme Administrative Court judgment of 20 March 2026 (II OSK 216/21) following the CJEU judgment of 25 November 2025 (C‑713/23) on the recognition of same-sex marriages concluded in other EU countries. It was not coincidence, that the anniversary conference held in 2026 at the CT was entitled “Natural law foundations of the constitutional system”.
Long Fight of the Right
The history of Polish Constitutional Tribunal dates back to the communist-era “normalization” after 1981 martial law. By coincidence, half of the bench ought to have been replaced shortly after the groundbreaking semi-free elections of 4 June 1989, that paved the way to the cabinet of T. Mazowiecki – the first noncommunist prime minister since the end of World War II. That in turn provided CT with a unique opportunity to successfully reinvent itself in line with the new, democratic reality.
However, the right-wing quickly began to contest the evolution of the Tribunal. In 1992, 48 right-wing Members of the first fully democratically elected Lower Chamber submitted the draft law enabling replacement of all 12 CT justices (Doc. no. 458, I Term). However, the initiative – advertised as “liberating the legal system from formal influence of post-communist institution” – was rejected by the major political forces pursuing negotiated transition to the democracy and market economy.
When the so called “post-communist cleavage” gave way to the current divide between Civic Coalition (Platform) of Donald Tusk and Law & Justice (PiS) of Kaczyński twins, the right-wing hostility towards he CT returned to the political agenda.
The double elections of 2005 delivered L. Kaczyński’s presidency and a fragile coalition government under leadership of J. Kaczyński. Although the cabinet lasted only until the 2007 snap elections, it embarked on “political mobbing” against the CT and undertook two failed attempts to force a PiS appointee to become a CT Chief Justice (for first see Doc. no. 765, for second Doc. no. 2030, V Term).
Ten years later, another set of double elections paved the way for the Polish constitutional crisis of 2015. The PiS’s candidate A. Duda unexpectedly won presidency, and PiS itself secured the first single-party majority since 1989. The outgoing parliamentary majority led by Civic Platform – perhaps attempting to safeguard against expected abuses of power by new PiS cabinet – embarked on an attempt to pack CT, passing legislation that allowed the appointment “in advance” of five – instead of scheduled three – justices.
This initial crisis was resolved by CT judgment of 3 December 2015 (K 34/15), stating that three out of five justices had been appointed correctly. However, the new PiS majority refused to implement the judgment, instead appointing its own five justices (and three of them, including quoted professor Morawski, became referred to as “doubles” as they were appointed for the “occupied judicial seats”, “replacing” the legitimate appointees of the previous majority). What followed, was a so-called “war against the constitution”, resulting in a right-wing victory, as the PiS appointee J. Przyłębska had been forced as CT Chief Justice. She presided over “a fundamental reversal of the traditional role of a constitutional court” and its transformation into “a governmental enabler”, to use phrase coined by W. Sadurski.
In a famous judgment, the Polish Supreme Administrative Court described the right-captured CT as “infected with lawlessness” (judgment of 16 November 2022, III OSK 2528/21). Its legal deficiencies were also confirmed in ECHR judgment of 7 May 2021 (Xero Flor v. Poland) and CJEU judgment of 18 December 2025 (C-448/23).
Restoration Derailed
The 2023 parliamentary elections, leading to the formation of a center-left cabinet of D. Tusk, inspired hope of rule of law “restoration”. On 6 March 2024 the Lower Chamber of the Parliament (Sejm) adopted a resolution proclaiming that the irregularities in CT had risen to the level where it was unable to carry out constitutional review and protect human rights (M.P.2024.198). That same day two draft laws were submitted to reshape the CT (Doc. no. 253 and 254, X Term). Passed on 13 September 2024, they were referred to the right-captured CT by President A. Duda, and declared unconstitutional in its judgment of 29 July 2025 (Kp 3/24). Given that failure, on 18 December 2024 the Cabinet adopted a resolution on the captured CT’s inability to perform its tasks and denying promulgation of its judgments (M.P. 2024.1068).
As right-wing K. Nawrocki replaced President Duda in 2025, it became apparent that legislative “restoration” of the CT was out of reach in the foreseeable future. The alternative plan, involving judicial appointments, was launched in March 2026.
According to the Constitution, the CT is composed of 15 justices. Given contestation of the specific appointments by both sides of the political divide, as of 8 September 2026, they can be divided into four groups:
- J. Wyrembak, who replaced late “double”, is recognized as legitimate justice by right-wingers (and Chief Justice Święczkowski), but his status is contested by the current majority citing judgments of CT, ECHR and CJEU.
- S. Piotrowicz, B. Sochański (deputy Chief Justice), J. Stelina, W. Sych, B. Święczkowski (Chief Justice) and R. Wojciechowski remain uncontested PiS-appointed justices.
- M. Bentkowska, S. Patyra and D. Szostek are uncontested appointees of the current, center-left majority, properly sworn in by the President K. Nawrocki.
- M. Dziurda, A. Korwin-Piotrowska, K. Markiewicz and M. Taborowski are recognized by the current majority that appointed them, but contested by the right-wingers (and Chief Justice Święczkowski), as President Nawrocki denied them the opportunity to be sworn in.
Finally, M. Berek was appointed on 4 September 2026, but was not yet invited to the swear-in ceremony.
Hawks – including constitutional scholar W. Sadurski – perceive the appointment of eighth, pivotal justice by the current majority as an opportunity to decisively break PiS nominees grip on the Tribunal. Others – notably constitutional scholar M. Matczak – argue that impatience can end with “Tribunal in exile”.
Some commentators expect M. Berek – widely respected as superb law-drafter and so close to the Prime Minister that he is referred to as Tusk’s “right hand” – to play pivotal role in reclaiming CT. Nevertheless, his candidacy was opposed by the liberal NGO community and 60% of surveyed Poles, as excessively partisan.
Towards the Schrödinger’s Tribunals
Regardless the differences on preferred tactics, both W. Sadurski and M. Matczak agree that some sort of CT restoration is both feasible and desirable. However, that is hardly the case if a “dualist constitutional court” is indeed the consequence of parallel meanings, ascribed to the Constitution by polarized politicians, lawyers and large clusters of voters.
Leaving aside specific legal tactics, CT restoration is likely to involve the following sequence: the eight appointees of the current, center-left majority (with at least four of them contested by the right) would somehow assume the role of the General Assembly of the Judges of the Constitutional Tribunal. Next, they will bypass Chief Justice Święczkowski (either on the grounds of the “doubles” involvement in selection of his candidacy or using disciplinary charges) using the PiS-introduced provision empowering the justice with the longest professional career to chair CT until new Chief Justice will be appointed.
That would pave the way for review (in five-justices panels) of the key PiS-enacted laws. The most likely, so called interpretative judgment technique will be used, in a way similar to the judgment of 7 November 2016 (K 44/16). These judgments will be promulgated in the Journal of Laws and enforced by the cabinet.
The reaction of the right-wingers seem equally predictable – they will deny the status of the CT’s General Assembly and frame the events as amounting to an illegal court capture. B. Święczkowski will carry the torch of “constitutional legitimacy” until February 2031, when his term in office expires. And once the elections deliver right-wing majority, it will unconstitutionally nullify the judicial appointments – just like in case of 2015 CT packing – to appoint another set of “doubles” contested by the liberals. (Professor W. Sadurski rejects this narrative, arguing that some PiS appointees will betray Święczkowski and his resistance will be futile).
The two parallel interpretations of the Constitution will be endorsed by two competing benches of Tribunal justices, producing two distinct sets of judgments. Just like Schrödinger’s cat – simultaneously dead and alive – parallel Tribunals would be recognized as “legitimate” and “illegitimate” by respective segments of Polish electorate, politicians and lawyers at any given time, with the current majority and cabinet determining whose case law should be followed and whose judgments ought to be promulgated and enforced. The trailer of this scenario was offered by bizarre, competing celebration of CT’s 40 anniversary. One, organized in Tribunal’s premises under the patronage of President Nawrocki and chaired by Chief Justice Święczkowski and the other, organized by Council of the Judiciary, and featuring – among other luminaries of Polish constitutional law – four former Chief Justices.
It is widely acknowledged, that since 2016 (i.e. one-fourth of the contemporary Polish democratic history) the CT lacks capacity to carry out effective constitutional review. In the longer run, Schrödinger’s Tribunals are unlikely to work any better. In an environment of clashing interpretations of Polish Constitution, unorthodox solutions for improving rights protection – including abolishing CT altogether and empowering ordinary and administrative courts – are badly needed. Unfortunately, it seems that old ideas have to be tested to destruction first.
Suggested citation: Kamil Joński, From Parallel Constitutions to Schrödinger’s Tribunals, Int’l J. Const. L. Blog, Sept. 29, 2026, at: http://www.iconnectblog.com/from-parallel-constitutions-to-schrodingers-tribunals/