The Rule of the Courts

Making Constitutional Courts Resilient: The German Example

longer be considered a safe haven. 8 The strengthening of the Federal Constitutional Court has been the focus of recent political strategies. In a political and constitutional conflict, they would, as the former German Minister of the Interior put it, become the “prime target” of “autocrats taking over”. Shielding these courts from attempts to dismantle them or seizing control over them keeps them capable of rejecting laws or acts of the executive or the judiciary. This is why, in other terms, constitutional courts are (where they exist) essential for the independence of the judiciary as a whole. However, the more likely scenario than a downright “conquest” of the constitutional court by extremist political forces is disruption, which may occur where the election of Justices – which usually requires a qualified majority in Parliament – is thwarted, and with it the operability of the Court. 9 The electoral provisions should therefore be kept flexible enough for periods with scant or uncertain governmental majorities while at the same time being sufficiently tight to prevent enemies of the constitutional order from penetrating the Constitutional Court. The draft legislative package (for amendments of both constitutional provisions and the Law on the Federal Constitutional Court – hereinafter LFCCt) had already been tabled in Germany when the matter suddenly became urgent: On 7 November 2024, tellingly on the very day of the U.S. presidential elections, the tripartite coalition in the German Bundestag broke up. From one day to the other, a remote and abstract danger was becoming an impending one: The polls gave reason to fret that in the wake of an almost ineluctable new election, the parliamentary majority which 8 Klaus F. Gärditz, in: Herdegen/Masing/Poscher/Gärditz: Handbuch des Verfassungsrechts , 1st ed. 2021, § 4 para. 158; for an overview of the dangers specific to the BL, cf. Julien Berger, Die institutionelle Gefährdetheit des BVerfG , in: DVBl 2023, 973 at pp. 975 ff. 9 Konrad Duden, Richterwahl und parteipolitische Einflussnahme , in: RabelsZ 2020, 637, at pp. 640 f.; on backsliding upon by dealing with disruption in the US, see Daniel Epps and Ganesh Sitaraman, How to Save the Supreme Court , in: 129 Yale Law Journal (148), at pp. 158 f. 2. A Last-Minute Reform

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