Judges are not here to govern. Those decisions belong to the elected branches.
As Spain's state of emergency drew to a close, its government turned to the judiciary to fill a void that legislators had left open — handing the Supreme Court the authority to approve or reject regional pandemic restrictions within a compressed two-week window. The move acknowledges, quietly but unmistakably, that the existing legal architecture was never built for a crisis of this scale or duration. In democracies, when the legislative will falters, other institutions are asked to carry weight they were not designed to bear — and Spain's highest court now finds itself governing where Parliament chose not to.
- Spain's state of emergency expired leaving a legal vacuum: without a unified framework, regional courts had been approving and rejecting nearly identical restrictions in contradictory ways, leaving citizens and officials unable to know which rules would hold.
- The government published an emergency decree compressing what normally takes months into fourteen days — three days for regional courts to rule, three to appeal, three for prosecutors to respond, five for the Supreme Court to decide.
- The Supreme Court's own leadership learned of the decree only hours before its approval, and its president publicly warned that judges are not instruments of governance — that role belongs to elected representatives.
- The court moved swiftly despite its misgivings, assigning all regional pandemic appeals to its health-specialized Fourth Section and opening direct coordination channels with regional courts to meet the brutal deadlines.
- The deeper tension remains unresolved: Parliament has still not passed the emergency health legislation that regional governments and opposition parties have demanded throughout the pandemic, leaving the judiciary to author rules that democracy would normally require legislators to write.
On the eve of Spain's state of emergency expiring, the government published an emergency decree handing the Supreme Court sweeping authority to resolve disputes over pandemic restrictions — compressing what would normally take months into a strict two-week process. Regional courts would have three days to rule, communities three more to appeal, prosecutors three to respond, and the Supreme Court five final days to decide. The urgency was real: between June and October of the previous year, regional courts had applied wildly different standards to nearly identical requests, producing contradictory rulings that left officials and citizens alike uncertain about what could actually be enforced. The Aragon Superior Court had rejected a municipal lockdown despite a spike in cases, while courts in Galicia, Navarra, and Castile and León approved similar measures during the same wave.
The decree built on a September reform that had shifted approval authority from lower courts to regional superior courts — a change that ensured consistency within regions but guaranteed chaos between them, since those decisions could not be appealed. The new measure corrects this by making the Supreme Court the final arbiter of what pandemic controls are permissible without a state of emergency, with the expectation that uniform standards for curfews, border closures, and gathering limits would emerge within weeks.
The Supreme Court's leadership, however, learned of the decree only hours before it was approved and did not see the text until its official publication. César Tolosa, president of the administrative law section, was pointed in his criticism: judges, he said, are not here to govern — those decisions belong to elected branches. He lamented that Congress had failed to pass the emergency health legislation the moment demanded. Despite this, the court moved quickly, assigning all regional appeals to its health-specialized Fourth Section, requesting a technical analysis of the decree for distribution among its judges, and establishing direct coordination channels with regional courts to meet the tight deadlines.
What took shape was a system born of necessity rather than design — the judiciary conscripted into a governing role it did not seek, operating under timelines that compress deliberation into days, tasked with producing the legal clarity that the legislative branch had declined to provide.
On the eve of Spain's state of emergency expiring, the government moved to prevent a return to judicial chaos by handing the Supreme Court sweeping authority to settle disputes over pandemic restrictions. The decree, published in the official gazette on Wednesday, compresses what would normally be months of legal proceedings into a two-week window—three days for regional courts to rule, three more for communities to appeal, three for the prosecution to respond, and five final days for the Supreme Court to decide. The stakes are high: without this framework, Spain faces a repeat of the legal fragmentation that plagued the country between June and October of the previous year, when judges applied wildly different standards to nearly identical requests from regional governments, producing a cascade of contradictory rulings that left both officials and citizens uncertain about what restrictions could actually be enforced.
The government had resisted calls throughout the pandemic to overhaul health legislation, despite pressure from regional leaders and opposition parties who wanted the authority to limit fundamental rights without judicial approval. Officials maintained that existing law provided sufficient cover for regional governments to manage the crisis without a formal state of emergency. Yet the decree itself betrays this confidence—it essentially acknowledges that the current legal framework invites chaos, or at minimum creates dangerous uncertainty. The measure modifies the law governing administrative courts, building on a September reform that had shifted approval authority from lower courts to regional superior courts. That change, however, created its own problem: decisions by regional courts could not be appealed, guaranteeing consistency within a single region but producing wild inconsistency across the country. The Aragon Superior Court rejected a lockdown of La Almunia de Doña Godina despite a spike in cases, while courts in Galicia, Navarra, and Castile and León approved similar municipal closures during the second wave.
The new decree allows regions to appeal to the Supreme Court when their own judges reject a proposed measure, making the high court the final arbiter of what pandemic controls are permissible without a state of emergency and under what conditions. The government hopes that within weeks, the Supreme Court will have established uniform standards for the most contentious tools: curfews, border closures between municipalities, and restrictions on social gatherings. The compressed timeline is essential to this strategy—normal cassation appeals can take months or years. Here, the entire process must conclude in fourteen days.
The Supreme Court's leadership learned of the decree only hours before the government approved it, and did not see the actual text until its publication Wednesday. César Tolosa, president of the administrative law section, expressed sharp criticism in an interview with the news agency EFE. "Judges are not here to govern," he said. "Those decisions belong to the elected branches." He lamented that Congress had failed to pass emergency health legislation tailored to the post-alarm period. Tolosa convened the four section presidents that same day to chart a course forward. They assigned all regional appeals to the Fourth Section, which handles health matters and has managed pandemic cases to date. The court also requested a technical analysis of how to apply the decree, to be distributed among all judges in the section for their input. A direct communication channel between the section president and the heads of administrative courts in each region was established to ensure coordination and meet the tight deadlines.
What emerges is a system born of necessity rather than design—the judiciary conscripted into a role it did not seek, operating under timelines that compress deliberation into days, tasked with producing the legal clarity that the legislative branch declined to provide. The Supreme Court will now become the de facto author of Spain's pandemic governance rules, at least until Parliament acts.
Citas Notables
Judges are not here to govern. Those decisions belong to the elected branches.— César Tolosa, president of the Supreme Court's administrative law section
Congress should have passed emergency health legislation rather than delegating these decisions to the judiciary.— César Tolosa
La Conversación del Hearth Otra perspectiva de la historia
Why did the government wait until the state of emergency was about to expire to create this system?
Because they believed existing law was sufficient. They resisted reform throughout the pandemic. But the September change—moving decisions to regional courts—exposed a fatal flaw: no appeals meant no consistency across the country. By May, they had to act.
So the Supreme Court didn't ask for this responsibility?
Not at all. Tolosa found out hours before it was approved, and didn't see the actual decree until it was published. He was direct about his unhappiness—judges shouldn't be making governance decisions. That's the legislature's job.
But if the courts reject a region's proposal, what happens to people living there? Do the restrictions just vanish?
That's the tension the decree tries to solve. Before, if a regional court said no, that was final within that region. Now the region can appeal to the Supreme Court within three days. The high court then has five days to rule. So there's a path to override a lower court, but it has to happen fast.
Five days to set national policy on something like curfews?
Yes. The government is betting that once the Supreme Court rules on the big questions—curfews, border closures, gathering limits—everyone will know the rules. Consistency matters more than leisurely deliberation, in their view.
And if the Supreme Court itself is divided? What if the judges disagree?
That's the real risk no one's talking about. The decree assumes the high court will reach consensus quickly. But if it doesn't, you're back where you started—legal uncertainty, different regions operating under different understandings of what's allowed.