The Rule of the Courts

Jörn Axel Kämmerer

by dealing out their consent to the election of a new Justice proposed by the other “camp” in return for them voting for their own – more radical – candidate the following time. If politics cling to the threshold of two-thirds for electing a Justice, “deals” like this might one day become inevitable. • Third, as mentioned above, the “two-thirds” standard has not been among the constitutionalised provisions, either. This was prompted by (not completely far-fetched) concerns that with its petrification, blocking minorities of just one-third in each electoral body could impair elections altogether. 20 The decision not to constitutionalise the threshold is ambiguous. On the one hand, it keeps the legislator sufficiently flexible to lower the quorum if required to evade deadlock, which in the increasingly fragmented political landscape would otherwise not be an unrealistic occurrence. 21 On the other hand, however, this implies that hurdles for a successful launch of extremist candidates would also be lower. 22 • Fourth, the Constitution poses no efficient barrier against interference with the legal provisions governing constitutional judicial procedure. Such a thing happened, for instance, in Poland, where the thresholds for delivering a verdict of unconstitutionality were raised under the PiS government, making it more difficult for the Court to render a judgment and to exercise its control. 23 In sum, the odds of democracy and the rule of law not being starved and frozen to death by the icy airs of winter (which in Germany are known to always originate in Russia) have improved thanks to the last-minute reform of 2024. But the ant must remain watchful. 20 Cf. Paulus, in: von Münch/Kunig, Grundgesetz-Kommentar, 8 th ed. 2025, Art. 93 BL, at paras. 26 f. 21 Paulus, in: von Münch/Kunig, Grundgesetz-Kommentar, 8 th ed. 2025, Art. 93, at para. 85. 22 Cf. Britz, in: NJW 2025, 609, at p. 612; Ulrich Karpenstein, Behüteter Hüter? , in: NVwZ 2025, 131, at p. 135. 23 Report of the Working Group „Wehrhafter Rechtsstaat“, 18 April 2024, pp. 36 ff., available at https://tinyurl.com/workinggrouprechtsstaat; cf. also (incl. reference to the French and Spanish solution of “loi organique”/”ley orgánica”) Duden, in: RabelsZ 2020, 637, at pp. 658 f.

51