Welcome to SCOTUSblog’s recurring series in which we interview experts on different supreme courts around the world and how they compare with our own. Today’s column focuses on Germany’s Federal Constitutional Court. To help me understand the court that can apparently “do no wrong,” I corresponded with Professors Susanne Baer and Christoph Möllers.
First of all, I understand that Germany has several supreme courts. What is the difference between the Federal Court of Justice, for example, and the Federal Constitutional Court?
SB: In Germany, there are supreme courts for different major fields of law (civil, labour, criminal, administrative, social security, and tax law), while the Federal Constitutional Court decides constitutional questions only, including judicial review of legislation, administration, and the courts. Since Germany is a federal state, there are also constitutional courts in each state.
CM: The FCC is a specialized constitutional court which has the mandate to apply just constitutional law, not statutory rules. The Federal Court of Justice is one (of five!) supreme courts for statutory law, in this case for criminal and civil law.
Focusing on the Federal Constitutional Court, how many justices are on this body?
SB: There are 16 justices, in two “senates,” or panels, with most smaller cases decided by chambers of three justices each (“kammern”).
How are these justices selected?
SB: Half of them are selected by the national Parliament (“Bundestag”), the other half by the federal second chamber of state governments (“Bundesrat”), with a 2/3 majority requirement, usually forcing the governing party to get votes from the opposition. The result has been an informal scheme that gives the power to propose candidates to the (larger) parties represented, with the conservative CDU/CSU [Christian Democratic Unity of Germany/Christian Social Union in Bavaria] and the liberal FDP [Free Democratic Party] on one side, the progressive social democrats SPD [Social Democratic Party] and the Greens on the other side, but both in need to agree across the aisle on “their” candidates.
Do the justices serve terms – and if so, of what length?
SB: The legislature defines the length of term and has amended the law over time. To date, justices serve for 12 years, or until age 68.
Is this court an appellate body? Or are its cases mostly matters of original jurisdiction?
SB: Citizens may lodge a constitutional complaint, which they do around 10,000 times a year. This is not a regular appeal, but the FCC nonetheless controls lower courts so that they do not act in utter disregard of the Constitution [also known as the Basic Law] (“Grundgesetz”). Also, the government, parliament, and federal states as well as political parties and their members have access to the court. Procedures and jurisdiction are listed in the Constitution and specified in the code of procedure for the court (“BVerfGG”).
CM: Technically, the court is not an appellate court, it has only original jurisdiction, but de facto most of the cases are constitutional complaints (“Verfassungsbeschwerden”) against court decisions brought by citizens.
My understanding is that – based on its very nature – the Federal Constitutional Court has the power of judicial review. What other powers does it have?
SB: The FCC controls all powers bound by the constitution, as defined in Article 1, section 3 of the Basic Law: the legislature, the executive, and the regular courts. Cases may be brought by individuals or by lower courts that deem a law to be unconstitutional, or by other state organs. In addition, the court decides whether a political party that aggressively attacks the very foundations of the constitutional order must be prohibited, a rare request that may only be brought by parliament, the federal chamber, or the government. The court would also handle requests to remove the president.
CM: It has the power to adjudicate constitutional conflicts between the federal and the state level, between parliament and government, the power to ban a political party, and the power to answer concrete constitutional questions brought by an ordinary court to the FCC.
Are cases decided by a simple majority?
SB: In a panel of eight, five votes would be enough, but the culture of the court is to seek consensus. The court usually speaks as one but may also emphasize that the decision was agreed upon by all justices, or that there was a split vote, like 6-2, on a particular matter.
How is the opinion writer assigned?
SB: By law. There is a president of the court, as well as a vice president, as heads of each respective senate, but cases are assigned to a reporting justice based on regulations published beforehand and renewed every other year. The reporting justice prepares the file, assisted by four clerks, usually career judges or state prosecutors “on loan” by the states for a few years, and drafts the opinion after intense deliberations. The opinion is then circulated for revision and consented upon line by line in the final “reading deliberation.”
CM: There is a general distribution of competences (an “organization plan”) that regulates in advance who will be the reporting justice for a given topic. Generally, there is no opinion writer. Unanimous decisions are delivered per curiam, others by the majority.
Is there a tradition of concurrences or dissents on the court?
SB: There is the right, but the tradition is consensus.
CM: There are dissents, but they are rather rare (and getting even more rare, lately). The overwhelming majority of cases are decided unanimously.
What were some major issues recently decided by the Federal Constitutional Court?
SB: The court gets cases from all walks of life and concerning all the issues on the agenda. However, major decisions take at least two years, some much longer. In recent years, the FCC decided many EU cases, in that it called for more control of the European Central Bank (“EZB”) by the European Court of Justice, because the EU is a law-based entity. It also clarified is own role as a national court responsible for fundamental rights next to, and not below, the ECJ. Regarding domestic politics, the court held that a federal budget scheme was unconstitutional (“Schuldenbremse”), which eventually brought the government to an end. Also, the court took several decisions against the government to strengthen the right of parliament to be informed before a vote. Finally, the request to prohibit a party on the radical right failed (“NPD II”), because that party did not have the “potentiality” to endanger democracy, but the second senate used the case to clarify the constitutional standards of militant – or as the GFCC says, “streitbare,” contentious – democracy. Also, it initiated a new procedure that eventually became an amendment to the constitution to withdraw state funding from such a party, which then happened (“Die Heimat”).
CM: A decision about a constitutional budget constraint rule basically killed all financial leeway for the last government of chancellor Olaf Scholz and led to its demise in 2024.
What have been some particularly controversial issues decided by this court historically?
SB: The first controversy arose when the young court struck down the government’s plan to run a TV station. Historically, two rulings to prohibit political parties, one communist and one fascist, made history. Then, the decision to allow the government to strive for German’s unification by signing treaties with the [German Democratic Republic] in the middle of the Cold War was very controversial, as were the much later rulings on European integration.
Similarly, the court again and again protected free speech and media, while also drawing the lines when speech becomes harm (“Wunsiedel”), as it clarified the reach and limits of the right to protest at times when mass demonstrations sparked controversies (“Brokdorf”). Similarly, decisions on religious diversity resulted in extremely critical times for the court (“Kreuz in der Schule,” “Kopftuch”). Over time, the court had to force the legislator many times to implement the right to sex equality (“Stichentscheid,” “Nachtarbeit”), as well as the right to self determination and protection of trans people (eight rulings in their favor), and the right of intersex people to be recognized as such (“Dritte Option”). Although the German Constitution does not feature social rights, the court has intervened prominently in matters of labor relations, social security, and asylum seeker benefits, some rulings coming under pressure. In 2021, the court handed down the climate protection (or “Neubauer”) decision obliging the government to take care of “intertemporal freedom,” thus acting with children and the next generations in mind.
CM: At its start there were cases in the 1950s about Nazi civil servants that were especially contested. In the 1970s there were many conflicts between a rather conservative court and a reformist social-democratic majority. Abortion remains contested until today. In the 1990s rights cases concerning religious freedom were especially controversial. There is also an ongoing controversy about constitutional limits to European integration.
The United States Supreme Court is often seen as partisan. Does the Federal Constitutional Court have a partisan reputation?
SB: No. The court enjoys a high level of trust in all segments of society. Over time, its decisions pleased both governing parties and the opposition, conservatives and progressives. Also, the court is not seen as partisan because all major parties propose candidates and need the approval from the other side.
CM: No, the need for a qualified majority has created, more often than not, a politically centrist court which generally sees its function in a middle-of-the-road consensual case law. Even if the effects are dramatic (as in the budget case mentioned above) the court is not perceived as acting with partisan intentions.
Would you say this court is considered a particularly powerful institution – say, compared to the chancellor or parliament?
SB: The FCC is very influential, and this is power, but it is still but a court, with neither the sword or the purse, but words only. It controls the parliament as well as the government, thus the chancellor, but is, and must be, wise enough to handle this power carefully. The court therefore designs remedies that also take the political realities into account.
CM: There is no doubt that the court is very powerful. But its power is, perhaps different from the U.S. Supreme Court, not a power that tips the balance between two political parties. It is rather an institutional power of its own.
What aspect of this court do you see as superior to that of the Supreme Court of the United States, and vice versa?
SB: Every society deserves and must design, and eventually redesign, its own court as the protector of fundamental rights and a democracy that deserves the name. The U.S. Supreme Court was, for a long time, a guiding light, but that has gone. In our world today, other courts now demonstrate what constitutionalism means as practice. The FCC is, to date, seen as one such successful institution, and many other countries have implemented similar rules and practices.
Generally, limited and unrenewable terms and a selection system that result in personal and political diversity on the bench are always a smart institutional design. Also, people and their attitudes matter tremendously. In the court, justices must be willing to act as judges, not politicians or moral crusaders, and they must keep searching for common ground particularly where they differ. If this is not the case it must be exposed to inspire change. In politics, office holders must respect such a court particularly when decisions interfere with what they prefer, but they must also live up to the task of good institutional design. And in society, people at best appreciate and defend the court as an independent body on their side.
CM: The German court follows in its reasoning in most cases its own legal construction, less a partisan logic. The justices operate as a team and do not represent parties or their own private constituencies.
Generally, there is a much more open debate in the U.S. about the mandate of courts to review democratic decisions. In Germany there is a certain lack of democratic sensibility towards the power of courts. For most Germans the FCC can do no wrong.
Recommended Citation: Zachary Shemtob, Germany’s Federal Constitutional Court , SCOTUSblog (Sep. 11, 2026, 10:00 AM), https://www.scotusblog.com/2026/09/germanys-federal-constitutional-court-/