The real issue is the Constitutional Court

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The real issue is the Constitutional Court

Published: 02 Mar. 2026, 00:02

Audio report: written by reporters, read by AI

Lee Hyun-sang

The author is a columnist at the JoongAng Ilbo.

The so-called three judicial reform bills — the crime of judicial distortion, the constitutional complaint against court rulings and the expansion of Supreme Court justices — have passed the National Assembly. Warnings about constitutional concerns, institutional side effects and the need for sufficient deliberation were set aside in the name of reform. Whether the measures will become a milestone toward judicial justice, as the ruling party argues, or an unprecedented disruption of the judicial order remains to be seen.

A view of the Constitutional Court building. Completed in 1993, the upper section of the structure features nine Mugunghwa flower sculptures symbolizing the court’s nine justices. [JOONGANG ILBO]

What is clear is that in the longstanding rivalry over the apex of the judicial system, the Constitutional Court has prevailed over the Supreme Court. By allowing constitutional complaints against ordinary court decisions, the court has effectively positioned itself as the final arbiter of the judicial order. The ambiguity surrounding the new crime of judicial distortion may also increase the court’s influence. The more vague a law is, the greater the room for political intervention in its interpretation and the more the Constitutional Court’s role expands in resolving disputes. That is why its eventual ruling on the constitutionality of the offense is drawing close attention.

The question is whether the Constitutional Court possesses the level of public trust and institutional foundation required for its role as final arbiter. The court has clearly fulfilled its responsibility as guardian of the Constitution, including its decisions to uphold presidential impeachments on two occasions. At the same time, it is difficult to deny that each major politically sensitive ruling has been followed by deep social division and conflict.

Part of the problem lies in how the court is composed. Three justices are appointed each by the president, the National Assembly and the chief justice of the Supreme Court. In theory, the arrangement reflects a balance among the branches of government. In practice, however, it has often functioned as a form of political allocation. Rival parties compete over the three seats chosen by the legislature, presidential appointees tend to reflect the administration’s orientation and the judiciary’s share falls somewhere in between.

The confusion surrounding justice nominations ahead of last year’s impeachment review illustrated the problem. Before major rulings, it has become routine for the public and the media to analyze the political background and perceived leanings of individual justices. At that point, the Constitutional Court risks being seen less as a constitutional tribunal than as an extension of politics.

The ruling party has cited Germany as a model in pushing through the three bills. Yet Germany’s Federal Constitutional Court operates on a different institutional foundation. Eight justices are elected by the lower house and eight by the upper chamber. Each selection requires a two-thirds majority, making it structurally impossible for any single party or faction to dominate the composition. A single 12-year term also reduces incentives for justices to consider political consequences in their decisions.

On this basis, the German court has maintained a high level of public trust. Surveys typically place confidence in the institution at around 70 percent, the highest among state bodies. In contrast, trust in Korea’s Constitutional Court has fluctuated depending on major political cases. During last year’s impeachment proceedings involving former President Yoon Suk Yeol, support rose above 50 percent in some surveys, but later fell to the low 40 percent range in others. This suggests that the court’s authority rises and falls with the political climate rather than accumulating institutionally over time.

A view of the Constitutional Court in Jongno District, central Seoul, on March 19, 2025, as a ruling on the impeachment trial of President Yoon Suk Yeol approached. With rival rallies intensifying around politically sensitive decisions, police barricades have become a routine measure to protect the court. [JANG JIN-YOUNG]

Constitutional adjudication is inherently political. Drawing limits on power, checking majority decisions and applying abstract constitutional norms to real political conflicts cannot be entirely separated from politics. But political judgment is different from partisan judgment. The sharper the conflict, the greater the need for objectivity and independence from constitutional justices. The court’s role is not simply to declare winners and losers, but to present constitutional standards that society as a whole can accept.

With the passage of the three judicial bills, the Constitutional Court’s status has clearly been elevated. Yet an expansion of authority alone does not guarantee legitimacy or trust. Powers that outpace institutional readiness may instead deepen political confrontation.

This issue has already moved beyond the level of ordinary legislation. It ultimately belongs on the agenda for constitutional revision. If the Democratic Party hopes to avoid criticism that it has pushed the judicial system into the shadow of politics for the sake of a single individual, it cannot ignore the need for institutional reform.

This article was originally written in Korean and translated by a bilingual reporter with the help of generative AI tools. It was then edited by a native English-speaking editor. All AI-assisted translations are reviewed and refined by our newsroom.