Vol. 15 No.11 (November 2005), pp.993-997

 

THE POLITICS OF CONSTITUTIONAL REVIEW IN GERMANY, by Georg Vanberg.  Cambridge, UK:  Cambridge University Press, 2005.  208pp.  Cloth.  $70.00/£40.00.  ISBN: 0-521-83647-6.

 

Reviewed by Kenneth Holland, Department of Political Science, Kansas State University. Email: kholland [at] ksu.edu.

 

Georg Vanberg, one of a relatively small number of American political scientists specializing in comparative judicial politics, sets out in this study to test the limits on the power of courts to make public policy.  He conducts an empirical analysis of decisions of the German Federal Constitutional Court.  This court is arguably the most powerful and respected constitutional court in the world, following in sheer power the U.S. and Canadian Supreme Courts.  His data include a statistical analysis of judicial decisions and interviews with both Constitutional Court judges and members of the Federal German Parliament, or Bundestag.  Vanberg’s conclusion is that German high court judges think strategically.  They do not simply interpret the constitution or enact their policy preferences into law.  Before issuing decisions, the judges examine carefully their political environment.  Their primary goal is to see their judgments enforced.  The fear of legislative snubbing is a powerful constraint on judicial action in Germany.  Vanberg discovered that the most important ally of the Court when it confronts legislative resistance is public opinion.  If an issue has little salience for the German people, or if it is too technical or abstruse, the Parliament will feel free, if it cares strongly about it, to ignore the Court’s judgment.  If, on the other hand, the constitutional issue presented is not complex and the public has a firm opinion on it, the Bundestag is considerably more likely to comply with the Court’s decision striking down a statute as unconstitutional.  Legislators have a powerful incentive, drawn from their accountability to the electorate, not to ignore the public’s support for decisions handed down by the Constitutional Court.  This alignment of the Court’s constitutional jurisprudence with the public will is the principal source, according to Vanberg, of the institution’s independence and legitimacy.  Because the Court cannot afford to make too many unpopular decisions, Vanberg concludes that judicial power is in fact consistent with democratic theory, because the judges, if not directly accountable to the voters, are indirectly so due to their fear of legislative non-compliance.

 

An excellent example of the role of public opinion as a resource for the Constitutional Court occurred early in its history.  In a 1952 showdown between the Federal Parliament and the Constitutional Court over ratification of two treaties, the government of Konrad Adenauer completely backed off efforts to defy a decision of the Court after facing a public backlash, motivated by attachment to the independence of the judiciary.  The single most important explanation for the victory of the judiciary in this institutional conflict, says Vanberg, was the reaction of the [*994] media to the threatened legislative non-compliance.  The treaty episode is reminiscent of the fate of President Roosevelt’s court-packing plan, announced in 1937 in an effort to influence the decisions of the Supreme Court by adding five new justices to its membership.  The media presented the President’s plan as an attack on the rule of law and the independence of the judiciary, public opinion turned dramatically against the proposal and the administration withdrew it.

 

Vanberg’s primary objective in undertaking the study was to qualify some of the overly generous assessments of judicial power found in the political science literature (Holland, 1991; Landfried 1992).  He echoes Alexander Hamilton’s characterization of the judiciary in The Federalist #78 as “the least dangerous branch” of government because courts lack the power to tax, appropriate money, command the armed forces or make laws.  Vanberg also criticizes the attitudinal theory of judicial behavior, as exemplified in the work of Segal and Spaeth (1993), for asserting that judges enact their personal policy preferences into law.  This theory ignores the fact, says Vanberg, that courts are strategic institutions that respond to their environment and that seek to maximize their effectiveness as institutions.  The environment in which courts act, he says, conditions the exercise of judicial power.  Vanberg relies on rational choice theory, which postulates that actors are conscious decision makers who act in ways they believe will maximize their welfare.  His conclusions reinforce the findings of Gerald Rosenberg (1991), who argues that courts in the United States are constrained in either initiating or preventing changes in public policy when legislatures have strong preferences that run counter to those of the judges. 

 

The author’s methodology is sophisticated.  He employs a triangular approach, combining game-theory, statistics, interviews with judges and legislators, and traditional jurisprudential analysis.  Public support inhibits parliamentary defiance of a Constitutional Court judgment, he says in his model, when the Court’s decision is aligned with public opinion and when citizens are likely to become aware of any attempt at evasion by the legislature.  He refers to the latter condition as a transparent environment.  The popular media, including newspapers and television broadcasts, largely decide whether the people become conscious of a judicial decision and thus whether the environment is transparent or opaque.  Other important players are interest groups that have a stake in implementation of the judicial ruling. These stakeholders are likely to bring the attempted legislative evasion to the media’s attention.  In industrialized democracies with relatively undeveloped civil societies and no tradition of an independent media, such as Russia, the environment is less transparent, and governmental refusal to implement court judgments is more likely.  The model predicts that evasion is most likely when the opposite two conditions are met:  the public is unaware of legislative defiance, and there is no public support for the Court’s decision. 

 

Vanberg’s model fits best in countries with multi-party systems, where there is real competition among parties for electoral support.  Parliamentary [*995] majorities are less likely to resist a judicial order, popular with the people, when they think that non-compliance will cost them significant numbers of votes in the next election.  The data reveal widespread public support for the Constitutional Court as an institution.  Therefore, whether Parliament attempts to resist compliance with a judicial decision typically turns on how transparent the defiance is to the public.

 

Vanberg’s analysis of the limits on judicial power is not easy to generalize since he examines the behavior of one court in a single country, the German Constitutional Court.  He also does not explain clearly how it is that a constitutional court could invalidate a law that is popular with both the legislature and the people.  A feature of the United States Supreme Court is that, during its periods of intense activism, it defies both Congress and the public.  Examples include the conservative Court that struck down the major legislative pieces of President Franklin D. Roosevelt’s New Deal during his first term, even though the legislation found to be repugnant to the Constitution by the justices had overwhelming support from both the Democratic majority in Congress and the American voter.  Likewise, the liberal Court led by Chief Justice Earl Warren in the 1950s and ’60s invalidated state laws requiring prayer in public schools, laws that enjoyed wide support in legislatures and public opinion.  Vanberg observes that outright parliamentary defiance of the German Constitutional Court is more common than defiance of Supreme Court rulings by state and federal legislatures in the United States.  A 1995 German Constitutional Court decision banning the display of crucifixes in German schools, for example, was ignored by the Bavarian parliament.  States in the U. S., by contrast, have complied with a similarly unpopular federal Supreme Court decision banning prayer from public schools.

 

The reason for the higher level of parliamentary deference evidenced by the German Constitutional Court in the face of threatened parliamentary non-compliance in comparison with the U. S. Supreme Court is the fact that the latter tribunal enjoys a higher level of diffuse support with the American people.  This general support exists even when there is little specific support for a particular judgment (Easton 1975).  In other words, due to more than two centuries of public support for the Supreme Court as an institution and its strong association in the public’s mind with the highly valued principle of the rule of law, the American High Court can afford to make unpopular decisions without fearing effective legislative resistance at either the state or federal level.  The U. S. Supreme Court has had 150 years more than its German counterpart to deposit legitimacy “chips” in its emotional bank account with the people and political institutions that it can cash in when it is necessary to render an unpopular decision.  The German Federal Constitutional Court is less than sixty years old and has not had time to develop the same degree of diffuse support among the German people.  Interviews with the justices revealed a consciousness on their part of the Court’s weakness in direct confrontations with the government, especially if the judicial ruling would require a large expenditure by the government likely to lead to increased levels of taxation.  The Parliament, in [*996] fact, has ignored repeated efforts by the Constitutional Court to force changes in the laws regulating the financing of political parties.  As a reflection of its awareness of its limitations in such face to face confrontations with the legislature, the German Constitutional Court has developed a tool not available to its American counterpart—it can declare a law incompatible with the constitution as opposed to declaring it null and void.  Such a ruling does not have retroactive force and gives the legislature an indefinite period of time in which to revise the offensive statute. 

 

Vanberg posits that a legislative majority will choose to defy a judicial decision on a constitutional decision only if it is likely to prevail in a showdown with the court.  During the 1950s, however, Southern legislatures continued to pass laws supporting racial segregation in the face of federal Supreme and lower court decisions demanding desegregation of the public schools in their states.  Democratic legislators voted for such evasive legislation not because they thought that they could defy the federal courts in the long run but because there remained strong support among their constituents for the status quo.  The noncompliance of the Bavarian parliament with the FCC’s crucifix decision is another example, says Vanberg, of situations where resistance to the courts is sometimes politically advantageous for legislators.

 

Vanberg’s view of courts as strategic actors responding to incentives and constraints within their environment shares with the attitudinal theory reductionism, the tendency to move away from the arguments made by judges in their opinions to justify their decisions and to explain decisions by reference to other causes, namely game-playing or attitudes of individual judges.  The danger in all reductionist analyses of judicial decision-making is that, if people widely accept that judges are motivated primarily by political or personal motives, the very legitimacy of judicial power is open to question and public support, on which legislative and executive compliance ultimately rests, will erode.  It is a dilemma common to political science as a discipline, most of whose practitioners are committed to both liberal democracy and the search for the truth, even if those truths undermine the very institutions they highly value.

 

THE POLITICS OF CONSTITUTIONAL REVIEW IN GERMANY is a welcome addition to the theoretical and empirical literature on the growing power of the judiciary in advanced industrial democracies.  Vanberg’s analysis wisely reminds us that even in countries committed to constitutional government judicial power faces severe restraints, restraints that have their roots in the nature of democracy itself.

 

REFERNCES:

Easton, David.  1975.  “A Re-Assessment of the Concept of Political Support.”  5 BRITISH JOURNAL OF POLITICAL SCIENCE 435-57.

 

Holland, Kenneth (ed.). 1991.  JUDICIAL ACTIVISM IN COMPARATIVE PERSPECTIVE.  New York:  St. Martin’s Press.

 

Landfried, Christine.  1992.  “Judicial Policy-Making in Germany:  The [*997] Federal Constitutional Court.”  15 WEST EUROPEAN POLITICS 50-67.

 

Rosenberg, Gerald. 1991. THE HOLLOW HOPE:  CAN COURTS BRING ABOUT SOCIAL CHANGE?  Chicago:  University of Chicago Press.

 

Segal, Jeffrey, and Harold Spaeth.  1993.  THE SUPREME COURT AND THE ATTITUDINAL MODEL.  Cambridge:  Cambridge University Press.

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© Copyright 2005 by the author, Kenneth Holland.