The Rule of the Courts

Making Constitutional Courts Resilient: The German Example

political bias than the very Bundestag and its electorate. It would be naïve to think that in a decidedly politicised court such as the one in Karlsruhe this is completely without effect on the jurisprudence – and its perception and reception by politics and the people. Until recently, this was mitigated by a political system composed of players eager to achieve a broad consensus for individual candidates 18 , but these times are probably over. If we sidestep features of ambiguity and predicament in the new ruleset, has it at least made the Court more resilient? Since not all (old and new) standards have been constitutionalised, the question must be raised as to whether there are any flanks left open. • First, the reinforcement of the Constitutional Court has its limits in the electoral system. Hungary teaches us that when a wily parlia mentary majority can alter the electoral standards for their own benefit so that they eventually win two thirds of all seats in Parliament, they can also amend the Constitution. If such a thing were to happen in Germany, the governing party could reverse the recent constitutional amendments and take a grip of the Federal Constitutional Court. While its composition and operation have at least been constitutionalised, the legislative provisions governing federal elections have not. 19 The likelihood of a Hungarian scenario unfolding in Germany is low but not zero. • Second, the “ersatz election” whose legal basis is Art. 93 (2) 3 BL was not conceived as a constitutional rule but just as a constitutional empowerment, that is, a legislative option. Parliament could therefore, by a simple majority, rescind the recently enacted § 7a LFCCt and obstructive forces might then delay the succession of a Justice interminably. In the same vein, this gives a new, politically extreme majority a lever for launching its proper candidates, for instance, 18 Christian Walter, in: Dürig/Herzog/Scholz, Grundgesetz Kommentar , 108 th ed. August 2025, Art. 93, paras 231 ff. 19 For a general view of constitutional design and the capacity of the judiciary to “immunise liberal democracy from the pressures of backsliding”, cf. Aziz Huq, Tom Ginsburg and Mila Versteeg, The Coming Demise of Liberal Constitutionalism? , in: 85 University of Chicago Law Review (2018), 239, at pp. 251 ff. with further references.

50