This paper is Nathan Brown colloquium: "Egypt: A Constitutional Court in an Unconstitutional Setting" on 23 Oct 2013 in New York.
Constitutional courts are primarily adjudicative structures that render judgments in which the meaning of constitutional clauses are at issue. As such, they would seem to be irrelevant in cases of constitutional vacuum and as at best reactive structures at times of constitutional transition. Yet because they have such a role in addressing fundamental questions, constitutional courts and their justices take on an aura that extends beyond the strictly adjudicative: they often serve as ultimate symbols of the state, as institutions that stand so far above or outside of the political process that they are the last resort for those searching for the locus of sovereignty. And paradoxically, they sometimes act not only above politics but also become enmeshed in political contests. In some transition settings—such as Hungary’s, South Africa’s or Russia’s—the constitutional court was a critical actor even as every other element of politics was in flux—or rather because every other element of politics was in flux. In this essay, I explore the role of a particularly prominent constitutional court—the Supreme Constitutional Court of Egypt. No country better illustrates the potential role of a constitutional court in an unconstitutional setting than Egypt during the tumultuous events—and constitutional chaos—of the past two and one-half years.