Regime Adaptation Within Russia’s Judicial Elites

December 25, 2023, marked the 30th anniversary of the Russian constitution. In December 1993, following months of intense confrontation between the old Soviet Congress of People’s Deputies and the newly elected president Boris Yeltsin, Yeltsin finally prevailed and imposed the new liberal constitution that quickly entered into force, establishing liberal human rights, the rule of law, and separation of powers.

30 years later, the Russian constitution still plays an important role within the Russian authoritarian regime. However, the 2020 constitutional amendments marked a turning point for Russian constitutionalism. Even though checks and balances in the 1993 Russian constitution had always been weak, in 2020, the Russian constitution finally lost its restraining function concerning the powers of the president. The main goal of the amendments in 2020 was to abolish the term limit for the president to allow President Vladimir Putin to stay in power beyond 2024. The constitutional amendments also weakened the Constitutional Court as an independent institution.

But even though constitutionalism finally collapsed in 2020 and the Constitutional Court lost its independence, the chairman of the Constitutional Court, Valery Zorkin, is still a significant and powerful figure within the regime. Zorkin has maintained his position over time by granting Putin authoritarian legality through favorable rulings and approval of his theory of state and law, elucidating constitutional policy in essays and speeches.

Zorkin’s current role is even more remarkable as he had already been the chairman of the Constitutional Court during the 1993 constitutional crisis. However, his role in 1993 was markedly different from that in 2020. In 1993, Zorkin was a strong defender of legalism and opposed Boris Yeltsin’s power grab. Back then, Zorkin stood for the constitution, the rule of law and the separation of powers, and rejected Yeltsin’s claim to power based on popular support. Fast forward three decades to 2020, Putin made similar references to the will of the people and people’s sovereignty in order to justify changes to the constitution which ran counter to the letter and spirit of the original text. On this occasion, Zorkin did not oppose.

Zorkin’s theory of state and law, along with his personalist interests, help to understand the role of the constitution and the Constitutional Court in the Russian authoritarian regime. During Putin’s fourth term, which began in 2018, and was propelled by the 2020 amendments, the regime’s personalization has progressed. In this process of regime personalization in Russia, formal institutions have been consistently undermined, with personal relationships becoming increasingly dominant. Today, positions are primarily allocated based on the principle of loyalty.

Zorkin during the 1993 Constitutional Crisis

During the 1993 Russian constitutional crisis, Zorkin actively participated in the confrontation between the elected President Boris Yeltsin and the Congress of People’s Deputies on the question of who was to decide on the new constitution. This culminated on September 21, 1993, when Yeltsin signed Decree No. 1400. This decree ordered the Congress of the People’s Deputies and the Supreme Council of the Russian Federation to cease their activities and called for new parliamentary elections to be held in December 1993. The decree was a clear violation of the constitution then in force. Zorkin appeared on television to explain the situation, warning of chaos, anarchy, and the risk of dictatorship. He then presented himself as the true defender of the constitution in force.

When Yeltsin won in October 1993, Zorkin was forced to resign from the post of chairman and the Constitutional Court dissolved, but Zorkin continued to address concern about the “terrible legal nihilism”. Zorkin criticized Yeltsin’s proposal for the new constitution as giving too much power to the president. He stated that the new constitution reminded him of the old communist constitution which gave a leading role to the Communist Party. “But then there was a whole party. Now it is one man.” (for a closer analysis of the 1993 crisis here).

However, Zorkin was later reinstalled and, in 2003 was once again elected chairman by his fellow judges. Kim Lane Schepelle recalled a rumor, circulating at that time that the judges had elected Zorkin to send a warning to the newly elected President Vladimir Putin not to overstep his constitutional powers. Zorkin was clearly seen as a strong veto player in a potential clash with the ambitious new president based on his opposition to Yeltsin in 1993.

In hindsight, this proved to be a misconception. Zorkin swiftly became a loyal supporter of President Putin, approving all of Putin’s accumulations of powers. Zorkin explains the discrepancy between the liberal text of the constitution and growing authoritarianism in legal practice through his constitutional theory of the “living constitution.” The solution is seen in a balance between the duties deriving from the constitution and the protection of the country. The concept demands a “dynamic interpretation” of the constitution whereby the constitution is only applied as far as “present conditions” so permit. In effect, the concept gives the legislator a wide margin of interpretation to use the constitution according to political needs. When Putin overruled constitutional principles such as separation of powers and federalism through legislation on regional government and parties, Zorkin defended this on the grounds of the need to combat terrorism, instability, and other threats. Zorkin frequently warns against chaos and lawlessness as characteristics of the 1990s´, and often recalls Yeltsin’s 1993 coup, which resulted in social atrocities and bloody conflicts.

Within a heterogenous group of judges, chairman Valery Zorkin managed to ensure that his position prevailed over other dissenting judges. In response, Zorkin was rewarded for his loyalty by the regime. The legal rules on the chairmanship were continuously amended in order for Zorkin to stay in power. While from 1991 to 2009, the judges of the Court elected the leadership of the court, since then the chairman has been de facto appointed by the federal president. And when Zorkin reached the age limit of 70 years for constitutional judges, the law was changed so that the rule no longer applies to the court president. All this suggests that Zorkin is personally selected by Putin.

Until 2020, an assessment of this policy of compromise may yield ambivalent results: Zorkin enabled the authoritarian regime to use the constitution and the Court for authoritarian purposes. Nevertheless, one may argue that with his policy of compromise, Zorkin’s approach also helped to secure at least some degree of constitutionalism. Until 2020, the Court was neither suspended for another time as in 1993, nor was the constitution amended to legalize authoritarian rule. The Constitutional Court instead became an important and respected institution within the (authoritarian) system. For some time this gave hope that constitutionalism in Russia may eventually succeed.

The collapse of constitutionalism in 2020

However, when authoritarianism became stronger and more personalized between 2012 and 2020, authoritarianism finally prevailed over constitutionalism. When the constitution contained no option for Putin to stay in power after a second consecutive term in office, the president used his power to amend the liberal text. Unlike in 1993, in 2020, Zorkin and the Constitutional Court did not defend the limits set by the constitution. By legitimizing the amendments, the Constitutional Court preserved not only Putin’s power but also the position of the Court’s chairman within the system. Valery Zorkin’s position was further strengthened. Since 2020, the position of the chairman of the Constitutional Court is mentioned in the constitution (Article 125 Paragraph 1). What is more, the provisions on the appointment as previously laid down in the law have been incorporated into the constitution.

The case of Zorkin shows how elites prioritize their own survival and therefore do not oppose a repressive and aggressive regime, most likely because they fear revenge from liberal peers and victims of the system. And since the war against Ukraine, elites have another reason to stay loyal. For those who fear being held responsible for a war of aggression and war crimes, Putin is the only “guarantor of stability.” Until today, Zorkin continues to defend the president. On May 23, 2023, during a televised working meeting with Putin, Zorkin presented the president with a historical map suggesting that Ukraine was a legitimate part of Russia. In doing so, Zorkin supports the President’s justification of the illegal Russian aggression against Ukraine and becomes another time his accomplice in this war.

But why did Zorkin not become a stronger opponent of Putin earlier on as he had been to Yeltsin, and as his peers probably expected from him in 2003? A probable explanation leads back to the year 1993. It has been convincingly suggested that for Zorkin, and for many of his contemporaries, the events of 1993 were a strong psychological trauma. It has therefore been argued that the 1993 events “burned” Zorkin, causing him to avoid taking any more risks.

This blog post is based upon a forthcoming article in the journal Russian History.