Judicial Activism in Defence of the Constitution: The Role of the Constitutional Court in Safeguarding the Rule of Law and Democratic Resilience

Abstract

This paper seeks to explore where the boundaries of constitutional court activism ought to be drawn when courts adjudicate sensitive issues related to fundamental rights. The analysis focuses on a decision of the Lithuanian Constitutional Court, where it held that the legislature is under a constitutional duty to provide for the legal recognition and registration of same-sex partnerships, thereby affirming that the constitutional concept of family extends beyond heterosexual unions. This case study is examined not in isolation but within a broader comparative and theoretical discourse on constitutional adjudication, judicial activism, and the role of courts in safeguarding democracy. The argument advanced is that, in times of democratic contestation and human rights retrenchment, such interventions may be indispensable for the preservation of constitutionalism and the protection of individuals. In those cases, constitutional courts often function as catalysts of social change when they hand down decisions for which society is not yet fully prepared. Over time, societies tend to adapt to new concepts and requirements. Without a bold and active—though not activist—constitutional court, societies might ultimately reach the same recognition of rights on their own, but only after a much longer and more painful process.