Fear of “Supreme Court-ization:” Electing Constitutional Judges in Germany

Daniel Haefke

Daniel Haefke, J.S.D. & LL.M. (Cornell), is a Legal Trainee at the Kammergericht Berlin, Germany.

Just one year after the German legislature enshrined several rules regarding the Federal Constitutional Court (FCC; in German: Bundesverfassungsgericht) – previously governed by ordinary law – into the Constitution (making them significantly harder to amend), the politics of judicial appointments to the FCC have erupted into a national spectacle unlike anything seen in the history of the Republic. Suddenly, the views of nominated judges were being debated in the national media, a nominated judge appeared on a prime-time political talk show to defend her record, and the election of three judges ultimately had to be postponed. After a month of public debate marked by personal attacks and misinformation regarding her previous comments, one of the nominated candidates, Frauke Brosius-Gersdorf, announced her withdrawal from consideration. For many, this episode came as a shock. The U.S. experience – marked by partisan and highly publicized Supreme Court nomination battles – looms as a cautionary tale. Commentators have voiced concerns about an “Americanization” of the German judiciary, in particular, a creeping “Supreme Court-ization” of the FCC.

The comparison to the U.S. seems obvious. In both countries, the Constitution holds a central place in the political imagination. Also, the U.S. Supreme Court and the FCC have both played a crucial role in developing and manifesting each nation’s distinct constitutional culture. Yet, Germany has largely avoided the kind of polarization that has long afflicted the U.S. Supreme Court. The FCC has remained a largely undisputed authority, and judicial nominations have never before evolved into a high-profile political event. But is Germany now really showing signs of a “Supreme Court-ization”? And if so, what are the parallels between the recent German and the U.S. experience?

The Wrong Parallel: The Political Radicalism of Judges

One commonly held view in Germany is that the judicial selection process has historically prevented a U.S.-style polarization by requiring a two-thirds parliamentary majority for the election of FCC judges. This supermajority rule should, in theory, structurally favor consensus candidates. And indeed, in practice appointments to the FCC have been governed by inter-party agreements. Initially, the Christian Democrats (CDU/CSU) and Social Democrats (SPD) alternated in nominating judges. Later, they brought the Greens and Free Democrats (FDP) into the arrangement – while excluding two other parties represented in Parliament: The Left and the far-right Alternative for Germany (AfD). For the most part, this arrangement has worked smoothly. This time around, however, the election of nominated FCC judges had to be postponed after several members of the Christian Democrats objected to the SPD-nominated candidate Brosius-Gersdorf. The objections followed a media campaign by right-wing outlets, which had portrayed her political views as “ultra left.”

Yet the risk of “Supreme Court-ization” in Germany does not stem from the nomination of non-moderate (supposedly radical) candidates. First, the one-dimensional left-right categorization of political positions is overly simplistic and offers only limited analytical value for understanding the politics of a constitutional court. Assuming this binary framing, there is no credible evidence to suggest that Brosius-Gersdorf’s views are more “radical” than those of many past and current FCC judges. But even if her views were less “moderate,” it would be unconvincing, from the perspective of democratic theory, to argue that the integrity of a constitutional court depends on a bench populated exclusively by centrists. Why should a constitutional court in a pluralistic democratic society not reflect the diversity of democratic positions, including those clearly to the left of any political median? After all, by definition, half the electorate lies to the left of that median.

Second, the view that polarization stems from radicalized judges misreads the U.S. experience. For much of the 20th Century, U.S. Supreme Court justices were confirmed by overwhelming Senate majority – often unanimously. Only in recent decades have nominations become deeply polarized. Yet, there is little evidence that the rise in political conflict around nominations in the U.S. has coincided with more ideologically extreme judicial personalities. According to the Martin-Quinn Score (a dynamic model that estimates judicial ideology based on voting patterns), Justices Rehnquist and Douglas – who briefly served together in the early 1970s – were respectively the most conservative and most liberal justice of the past century (for the scores of the more recent justices, see here). A similar finding is suggested by the Segal-Cover Score (which measures perceived ideology at the time of nomination, and has been calculated for all U.S Supreme Court justices from 1937 until today). The score assigns a 0 (“most conservative”) or 1 (“most liberal”) to only seven justices, none of whom were nominated in the last three decades and all of whom were confirmed by large majorities (mostly unanimously).

The Correct Parallel: The Political Power of a few Judges

If the FCC is at risk of “Supreme Court-ization,” it is not because nominees are becoming more radical, but because the power invested in individual judges is increasing, thus making their selection politically consequential. This dynamic reflects a rational political response to the judiciary’s growing role in authoritatively deciding deeply contested social questions – a task traditionally handled by the legislative branch. This development is not only found in Germany. It has been widely discussed and criticized (often accompanied by a call to turn toward “political constitutionalism”) as the increasing constitutionalization of politics, which risks limiting the possibilities of democratic self-government. In Germany, legal scholars have long debated this phenomenon, sometimes referring to it as the rise of the “Karlsruhe Republic” (Karlsruhe being the city where the FCC is physically located). This shift in power can be told as either a story of judicial self-empowerment or a story of legislative retreat (or both). The more the power is concentrated in the hands of a few individual judges, the more politically consequential each judicial appointment appears. Thus, the dynamic is still much more pronounced in the U.S.: while Germany’s FCC has 16 judges serving non-renewable 12-year terms, the U.S. Supreme Court consists of just nine justices appointed for life.

In both systems, polarization around judicial nominations is increasingly driven by specific, ideologically charged political issues – most notably, abortion. No single issue has more deeply animated the U.S. conservative legal movement and shaped the judicial nomination politics of the past decades than the goal of overturning Roe v. Wade (1973), the landmark ruling that had established a federal constitutional right to abortion. That goal was ultimately realized in Dobbs v. Jackson Women’s Health Organization (2022). The conservative hope was that by overturning Roe, Republican-led states would regain the ability to pass restrictive abortion laws more closely aligned with local majority preferences. In the U.S., the dominant narrative has thus always been one of courts potentially thwarting or redefining popular will. This anxiety shaped not only the politics of the Republican Party but also the Democratic Party. One of the Democratic Party’s central objections to the 2020 nomination of Amy Coney Barrett, for example, was the belief that her confirmation would lead to the dismantling of the Affordable Care Act, one of the party’s most popular policy achievements.

Germany’s recent events mirror this dynamic – but in reverse. The trigger for right-wing opposition to Brosius-Gersdorf’s nomination was her rather liberal stance on abortion. Unlike the U.S. Supreme Court, the FCC has historically acted as a constraint on abortion rights. In two landmark decisions (in 1975 and 1993), the Court struck down legislative attempts to liberalize abortion laws (BVerfGE 39, 1 (1975); BVerfGE 88, 203 (1993)). Driven by the FCC’s dignity jurisprudence, Germany ended up with an (at least in theory) much more restrictive abortion regime than the U.S.: abortion – the Court reiterated in its 1993 decision – must remain generally illegal. Today, a large majority of Germans across party lines support an unconditional right to abortion during the first 12 weeks of pregnancy. Thus, when German conservatives oppose certain FCC nominees, they do so over the same issue as U.S. conservatives (abortion) but in an inverted situation: to preserve a Court that continues to play a counter-majoritarian role.

Conclusion

In sum, the real threat of “Supreme Court-ization” in Germany does not lie in the possibility of supposedly radical judicial nominees, but in polarized political reactions to the increasing consequentiality of appointments to the highest Court. This consequentiality is the offspring of growing political power vested in individual judges. Like the U.S. Supreme Court, the FCC risks becoming a battleground for contested social issues – especially abortion. However, in Germany, the abortion debate appears inverted, where conservatives seek to preserve the FCC’s counter-majoritarian role.

Daniel Haefke, J.S.D. & LL.M. (Cornell), is a Legal Trainee at the Kammergericht Berlin, Germany.

Suggested citation: Daniel Haefke, ‘Fear of Supreme Court-ization: Electing Constitutional Judges in Germany’, IACL-AIDC Blog (day month 2025) Fear of “Supreme Court-ization:” Electing Constitutional Judges in Germany — IACL-IADC Blog