In recent weeks, the United States Supreme Court and Germany’s Federal Constitutional Court (FCC) have been at the storm center of their respective political systems. In the United States, the uproar has centered on the Court’s review of the Patient Protection and Affordable Care Act and the real possibility that a major health reform law, duly enacted by Congress, might be held unconstitutional. In Germany, the outcry stems from FCC rulings holding up the passage and ratification of European bailout treaties. These judicial interventions in highly sensitive areas of social and economic policy prompt comparisons between the political roles of two of the world’s most important constitutional tribunals.
These tribunals, however, are very different in the scope and intensity of their review powers. In assessing the validity of a federal law, the Supreme Court would never examine the circumstances of its enactment. As Otto von Bismarck famously remarked, “laws are like sausages and it is better not to see them being made.” Like Bismarck, the Supreme Court accepts the legislative process for what it is: a messy, log-rolling, power-wielding, and less than fully transparent affair in which a simple majority wins (at least in the House of Representatives). Any judicial policing of this process would be seen by Americans as an unprecedented act of meddling in the affairs of Congress. Similarly, in the making of treaties, the Supreme Court has no interest in the extent to which the president consults with the Senate. Its function in the first situation is simply to rule whether a law offends the Constitution. What counts in the second is whether the Senate has ratified a treaty by the required two-thirds vote.
In the German bailout controversy, by contrast, the FCC faulted the executive for failing to inform parliament adequately of the details of its negotiations over the European Stability Mechanism (ESM). Withholding such information from parliament, said the Court, deprives legislators of their rightful control over European budgetary matters. In a recent decision, the FCC even questioned— “in large part,” it said—the constitutionality of a nine-member parliamentary committee set up to provide “fast-track” approval of an urgently needed euro rescue fund. It suggested that a small, semi-secretive committee working in close tandem with the chancellor transforms parliament into an ancillary arm of the executive branch. In short, such “fast-track” procedures would breach the principle of parliamentary democracy. Leading German commentators agreed. “We can’t sacrifice democracy to save the Euro,” said one reporter. The Süddeutsche Zeitung spoke for several major newspapers in remarking that “democracy is not a ‘speedocracy.’” Suffice to say that the U.S. Supreme Court would have regarded such legislative practices as political questions unfit for judicial resolution.
From an American perspective, the most brazen judicial intervention in the euro-funding dispute was yet to come. On 22 June 2012, parliament overwhelmingly approved the fiscal compact and ESM bailout treaties, both championed by Chancellor Angela Merkel. The Bundestag approved the treaties by votes of 491-111 and 493-106, respectively; in the Bundesrat (Council of States), 15 of the Federal Republic’s 16 states voted to uphold the treaties. In the United States, a similar congressional vote favoring a treaty would have been the end of the matter, and any subsequent move by the Supreme Court to challenge the president’s paramount authority in making treaties would be regarded as an extraordinary act of judicial hubris. The FCC labors under no such restraint. Immediately following the passage of the euro treaties, the justices accepted petitions challenging their constitutionality, whereupon they took the bold—and rare—step of asking Germany’s president, Joachim Gauck, to refrain from ratifying the treaties pending a full judicial hearing on their legality. This would be analogous to the Supreme Court asking the president not sign a bill into law until the justices have had a chance to consider its constitutionality.