Lifting the veil of secrecy – dissenting opinions in the subnational constitutional courts of Germany

ABSTRACT

Dissent is an integral feature of decision-making in collegial courts. However, unless procedural rules provide for the publication of a dissenting opinion and judges make use of this opportunity, courts appear to outsiders as impersonal, monolithic institutions. The following contribution explores dissenting opinions in German subnational constitutional courts (Landesverfassungsgerichte). Today, most of these courts provide for open dissenting opinions. Based on an empirical analysis of 1,115 cases decided by the constitutional courts of ten states (Länder) over a ten-year period (2009–2018), I find that dissent is driven predominantly by decision-level factors. Notably, the likelihood of dissent increases where a decision taps into the relationship between federal and state constitutional law and where more than one dissenting opinion is published. By contrast, I find no evidence for ideology or career background to impinge on the decision of a judge to author a dissenting opinion.

KEYWORDS:

• Dissenting opinions
• rational dissent theory
• subnational constitutional courts
• ex ante model
• federalism
• Germany

Acknowledgments

I am indebted to Werner Reutter for sharing his data on subnational constitutional courts and for providing invaluable feedback and encouragement. I would also like to thank Uwe Kranenpohl and Oliver Lembcke for helpful comments. Alina Schulte provided excellent research assistance for this article. An earlier draft of this article was presented at the 28th scientific conference of the German Political Science Association (GPSA/DVPW), which was held online from September 14-16, 2021.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 In keeping with the terminology known from the U.S. Supreme Court and following Reutter (2021), I employ the term justice for judges at constitutional courts.

2 At the Bavarian constitutional court, justices may write a dissenting opinion, but only in an anonymized form.

3 In the exclusive case of Bavaria, private citizens can, by means of the so-called popular action (Popularklage), initiate an abstract review.

4 Given the congruence of fundamental rights at the subnational and federal level, constitutional complaints before the FCC remain the ‘reservoir’ avenue for the redress of rights violations in states without a separate constitutional complaint procedure.

5 Brandenburg and Berlin provide for the possibility of appointing full-time constitutional justices. It should be noted that constitutional justices at the Austrian Constitutional Court also exercise their office alongside their regular employment as professional judge, attorney at law, prosecutor or law professor (Holzinger 2010). However, Austrian constitutional justices receive a remuneration for their subsidiary office that by far exceeds the rather symbolic allowances that justices at German subnational courts are entitled to.

6 In Bavaria, the right of proposal rests with the president of the Constitutional Court, in Hesse, it is the president of the Higher Regional Court which wield this right (Reutter 2021a, 8).

7 In Hesse, a two-thirds majority applies for the election of the five professional judges, while the seven non-judge members are elected by simple majority.

8 Juris (juris.de) is a commercial provider of legal information that features the most encompassing database on the jurisprudence of courts of all jurisdictions and at all levels of government in Germany.

9 The data on the decisions and the justices are retrievable under https://www.sowi.hu-berlin.de/de/forschung/projekte/LVerfGe/Statistiken (last accessed on January 14, 2022).

10 The Reutter dataset excludes six professional judges at the constitutional court of Hesse which are elected by a designated parliamentary committee. Also, information on constitutional justices from Bremen for the period 2011–2015 had to be completed for this analysis.

11 Where justices serve as ex officio members of the constitutional court, which within my sample is the case only for the president of the constitutional court of Bremen, I imputed the value 100.

12 For instance, while the panels in Bremen, Mecklenburg-Western Pomerania, Saxony-Anhalt or Schleswig-Holstein are composed of 7 justices, the constitutional court of Hesse features panels with 11 justices.

Additional information

Funding

This work was supported by the Central Research Development Fund of the University of Bremen under Grant ZF01/2020/FB08/Thierse_Stefan.