The U.S. Supreme Court and the German Constitutional Court are again reminding their legislative counterparts in the Congress and the Bundestag about the decisive role they play in shaping the policy choices in the United States and Germany.

The decision on the constitutional parameters of health care reform reshaped the American debate and set the stage for a major clash over the Patient Protection and Affordable Care Act after the November 6 presidential elections, depending on the outcome. That decision, along with the one issued days earlier on immigration law, also underlined the continuing struggle over defining the role and reach of the federal government in determining policy. Yet it also illustrated how the polarized legislative process is increasingly turning to the courts to solve a problem the legislators cannot—or will not.

Following the Bundestag vote last Friday approving both the European Stability Mechanism (ESM) and the fiscal compact Chancellor Angela Merkel agreed to in Brussels, the Federal Constitutional Court has agreed to hear objections to consider whether these initiatives are in line with German law. The ESM needs Germany’s approval before it can take effect. If the Court blocks the ESM’s ratification, Chancellor Merkel would be embarrassed and the steps to deal with the euro zone’s crisis would be delayed for months.  Even if the Court gives the go ahead, a full hearing and verdict on the case could still be pending down the road. The fact that German President Joachim Gauck decided to hold off with his signature on the law until the Court makes its ruling only adds to the drama.

The German Constitutional Court is expected to side with the chancellor. That said, the Court is also capable of issuing a warning that the debate over the ESM is not over. Three years ago, the Court stunned most of Europe when it delivered its ruling on the Lisbon Treaty. At that time, the judges declared the Lisbon Treaty is compatible with the country’s constitution, but it also said that domestic law must strengthen the Bundestag’s involvement in the implementation of European law.  Part of the argument was aimed at the issue of maintaining a sufficient level of the democratic process in shaping the decisions around European integration. This red flag seemed to indicate that German sovereignty was going to remain fully in place as the European Union moved forward.

Meanwhile, the euro crisis has been generating calls for more European integration in order to get a grip on the challenges facing all members of the EU, with Chancellor Merkel in front of that effort. The danger she faces in light of the Constitutional Court’s hearing next week is the same problem President Barack Obama faced while waiting for the Supreme Court to rule on the health care law: the threat of losing legitimacy in the eyes of the voters if they hear that their elected leaders are not in line with the country’s constitution.

There is still another danger. The trend toward turning to the courts to solve legislative battles is one that reflects the inability of the legislative branch of government to forge a consensus among themselves, let alone with the electorate.  The immediate ascendancy of political debate to a constitutional battle says much about both the style and the content of political discourse in democracies. The hyperbolic tendency to attribute conflicts to Manichean-level clashes is a bad sign for consensus building at a time when it is badly needed.

This trend can also infect the courts.  In the U.S., the Supreme Court’s rulings are becoming increasingly decided by the narrowest of margins in 5-to-4 votes—decisions that are deemed highly politically charged and reflective of the rise in hyper-partisanship in Washington. The Supreme Court will consider more politically explosive laws next term, including the use of affirmative action and same sex marriage. While the Supreme Court remains a trusted institution in comparison to Congress, it still remains part of a highly polemic environment as illustrated by the health care decision, which lined up along expected political lines (with the exception of the deciding vote by Chief Justice John Roberts).

In Germany, the sixteen judges on the Constitutional Court are not immune from politics. Indeed, they are nominated by the parties represented in the Bundestag and Bundesrat and are drawn from political backgrounds to serve a twelve year term. One Chief Justice, Roman Herzog, went on to become president of Germany.

While the court has maintained a high level of trust as a neutral umpire, the increasing pressure emerging from the struggle over the euro and the next phase of European integration has impacted decision-making in the Bundestag. Looking again to the Karlsruhe court for guidance is another measure of the difficulty in consensus-building in Germany.

There are clearly high decibels of concern among those taking their suits to Karlsruhe next week. The projections of disaster connected with the euro and the entire European project are on the minds of many in Germany. The debates among the political parties, government, and opposition are intense. Yet, those debates do not seem to boil down to a battle between the forces of good and evil or between the forces of light and darkness. The debates are about the best way forward in a Europe in which Germans have an enormous stake. Along the way, the courts help to define the options and obstacles in plotting the path ahead.

The judicial and legislative institutions were set up in both German and American democracies to provide part of the checks and balances that mark both systems and their capacity to govern. The challenge that both are currently facing is to maintain trust and credibility in the eyes of those who are most impacted by their decisions—the citizens. In an atmosphere filled with fears and uncertainties about the future, trust is a precious commodity in governments. It should not be taken for granted. It needs to be earned.

  • K Bledowski

    “The debates among the political parties, government, and opposition are intense”

    Anyone taking her/his case to a Supreme Court, whether in Karlsruhe or Washington, is entitled to passion. The temperature of political debate may seem high today but that’s relative. We live in an era of post-ideological emotion. Today’s passion differs from that of the 19th century in that communism, Marxism or other absolutisms had blurred the borderlines of constitutional limits, often leading to destructive and vindictive wars and revolutions. In fact, “constitutional limits” was an ephemeral term then.

    By contrast, today’s strict guidelines of constitutional order may invoke passion but this one is of a healthy variety. It’s a sign of strength, not weakness.

    Jack Janes is right in saying that today’s discourse in Germany is not about the forces of good and evil or the forces of light and darkness. The rules of new democracy in Europe are being written as we speak. The last thing we need is a hastily adjudicated order which gets us all passionate the wrong way. Better to check and re-check with the Courts. And keep debating about the future within acceptable political limits.