Leading a constitutional court: perspectives from the Federal Republic of Germany.

Author:Quint, Peter E.
Position:2005-2006 Symposium: The Chief Justice and the Institutional Judiciary
 
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INTRODUCTION

In order to make sense of any sort of comparison, there must ordinarily be some degree of similarity among the things that are to be compared. In comparative constitutional law, for example, it seems clear that a basic similarity in underlying principles--a common acceptance of what German constitutional law calls the "free democratic basic order"--is a fundamental presupposition of most contemporary endeavors in the area.

Yet it is not the similarities, but rather the differences, that lend these endeavors their special piquancy and much of their value. More specifically, it is the myriad differences, set out against the background of common agreement, that often make these comparisons worthwhile--because the differences represent alternative means that have been chosen in various systems to pursue what is essentially a common end. In any event, the differences are ubiquitous: the more deeply one probes into an issue in comparative constitutional law, the more evident it becomes that almost nothing is precisely the same in any two legal systems.

Certainly a comparison of the respective roles of the Chief Justice of the United States and the President of the Federal Constitutional Court of Germany requires us to consider two systems whose underlying presuppositions are in many ways quite similar. In general principle, moreover, the functions of the official leaders of these two eminent tribunals are also in many respects the same.

But that is indeed where the similarities end--in general principles. When we examine the actual institutions themselves--the Supreme Court of the United States and the Constitutional Court of the Federal Republic of Germany--we see that, in many aspects of extremely important detail, there are very wide differences between the institutional structures and functions of these two important constitutional courts. Moreover, as the institutional aspects of these two courts differ, these differences result in quite substantial variations between the roles of the two chief judicial officers: the Chief Justice of the United States and the President of the German Constitutional Court.

But it is also clear that no constitutional or statutory drafter ever focused in the first instance on the design of the chief judicial officers of these two constitutional courts. Rather, the principal focus was on the design of the respective tribunals as institutions, and, in many respects, the salient characteristics and relative power of the chief judicial officers have followed rather logically from differences in the basic design of the two institutions.

It is, of course, not the place here to engage in an extended disquisition on the Constitutional Court of the Federal Republic of Germany--although many readers may not be immediately familiar with this institution. Suffice it to say that the Constitutional Court was established after World War II to interpret and enforce the Basic Law (constitution) of the Federal Republic of Germany and that, in the more than five decades of its existence, the Court has developed an extensive constitutional jurisprudence of considerable subtlety and power. (1) While most of the Court's decisions are handed down in procedures that--roughly speaking--resemble the concrete "cases" and "controversies" of American constitutional law, the Court's jurisdiction also includes certain "abstract" proceedings initiated by a state or by one-third of the members of parliament, or by one "constitutional organ" claiming that another "organ" has invaded its sphere of competence. (2) A number of other differences between the two courts--specifically relevant to our topic--will be touched upon in the paragraphs below.

So let us begin with the differences between the Chief Justice of the United States and the President of the German Constitutional Court--differences that grow out of variations in the respective judicial institutions themselves. As we proceed with this examination, a number of important similarities between the two offices will also become apparent.

  1. TWO SEPARATE PANELS

    In a number of significant instances, the institutional structure of the German Constitutional Court seems to accord the Court's President distinctly less power than that exercised by the Chief Justice of the United States. One crucial difference, for example, is that the Constitutional Court of the Federal Republic of Germany is actually more like two courts than one--in sharp contrast with the Supreme Court of the United States which, according to the constitutional text, must consist of "one Supreme Court." (3)

    As part of a political compromise entered into when the German Constitutional Court was established in 1951, parliament decided that the Court should be divided into two separate panels or "Senates." At the outset, each panel consisted of twelve justices, but since 1962 that number has been set at eight justices for each Senate. (4)

    The work of the Court is divided between the two Senates according to the subject matter of the particular case. Thus, with some significant exceptions, matters of individual rights come before the so-called "First Senate," and matters of governmental structure are decided by the "Second Senate." (5) Upon appointment, each justice is assigned to one of the two Senates and may not ordinarily participate in the work of the other Senate. Although the two Senates are authorized to sit together in certain circumstances (in a body called the Plenum), (6) this joint meeting does not take place very frequently. The result is, therefore, that the two Senates of the Constitutional Court in effect constitute two different courts. (7)

    The President of the Constitutional Court is the presiding officer of only one of the two Senates: the presiding officer of the other Senate is an entirely different judge, who is called the Vice President of the Court. (Of the eight Presidents of the German Constitutional Court from 1951 to the present, six have been the presiding officer of the First Senate, and two have been the presiding officer of the Second Senate.) (8) As a result, any possible special influence that the President might wield--as President--in the conferences and certain other inner workings of the Court, relating to the actual decision of cases, is likely to be restricted to one Senate alone. The Vice President may have this power--or something like it--in the other Senate. Therefore, one could argue that there are two "Presidents" of the Constitutional Court, although I think it is fair to say that the actual "President" does wield a degree of unique moral and practical authority, as will be discussed further below.

  2. TWELVE-YEAR NONRENEWABLE TERMS

    Another difference of considerable importance--which also may diminish the comparative authority of the President of the German Court--arises from differing rules relating to the tenure of office of the judges. While the Justices of the American Supreme Court, including the Chief Justice, are in effect chosen for life, the judges of the German Constitutional Court (including the President and Vice President) are appointed for nonrenewable twelve-year terms. (9) This choice represents an alternative method of achieving judicial independence: even though the Constitutional Court judges have limited terms, they cannot be reappointed and therefore--the theory goes--they would be unlikely to trim their decisions to achieve any sort of political favor with executive or legislative officials. (10)

    The result of these shorter judicial terms is that there is a reduced chance for the exercise of influence by the Constitutional Court President over a very long period of time. One could compare, for example, the shorter German terms with the recent example of William Rehnquist, who served for nineteen years as Chief Justice (after fourteen years as Associate Justice). Indeed, during the period from 1951 (when the Constitutional Court was established) until the present, there have been eight Presidents of the Constitutional Court, whereas--during the same period--there have only been five Chief Justices of the United States (actually, only four, if one excludes the tenure of newly appointed Chief Justice Roberts). (11) Indeed, even more extreme disparities are readily imaginable: the period from 1801 to 1864, for example, encompassed the chief justiceships of only two individuals, Marshall and Taney. But this period is considerably longer than the period from 1951 to the present, which covers the entire history of the German Constitutional Court and includes therefore the entire tenure of its eight Presidents.

    Thus, the limitation on terms of office furnishes another way in which the authority of the President of the Constitutional Court may seem limited, to some extent, in comparison with that of the Chief Justice of the United States. (12)

  3. LIMITED AUTHORITY OVER ASSIGNMENT OF OPINIONS

    The Chief Justice of the United States has only one vote in the Court's conference--as does each of the other Justices. It is often said, therefore, that much of the special power of the Chief Justice's role lies in his authority over the assignment of opinions written for the Court. The Chief Justice assigns all opinions in cases in which he votes with the majority; the senior Justice in the majority assumes that function if the Chief Justice dissents from the decision. (13) It is sometimes said that a Chief Justice has employed this authority to help cement coalitions, to improve his tactical position with various members of the Court, and to direct opinions in important cases toward those Justices whose views are most like his own. It has also been said that, from time to time, a Chief Justice may even forego casting a dissenting vote and switch to the majority side (perhaps only temporarily), in order to be able to assign the opinion in an important case. (14)

    Whatever power an American Chief Justice may exercise through...

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