CONSTITUTIONAL COURTS IN COMPARISON is a collection of essays on decision-making within two of the world's most powerful and prestigious tribunals, namely, the United States Supreme Court and Germany's Federal Constitutional Court. Normative constitutional law is usually at the core of comparisons between these two tribunals. This book is different. It adopts what the editors call "a sociological perspective that understands constitutional litigation as dispute processing," by which they mean "a process in which social or political conflict is transformed into a legal dispute, and then back again into a social or political conflict." This is fancy language for the relatively simple notion that constitutional courts are political institutions. The collected essays are designed to show how social context, institutional structures, and given historical settings influence each stage of the constitutional "dispute resolution" process. These stages include selecting cases for judicial review, deciding the selected cases on their merits, and putting constitutional rulings into effect. Because so little is known about the procedures involved in these stages, especially as they operate in Germany, this book is a welcome addition to the literature of comparative judicial studies.


The collected papers grew out of a conference held originally in 1987. As published in 2002, however, they are neither systematically comparative nor uniformly sociological. Well-known American and German judicial scholars prepared chapters on selected aspects of "dispute resolution" within their respective national tribunals. Only two are genuinely comparative. These two embrace the editors' introduction -- an informative comparative overview of the two tribunals, setting the stage for the papers to follow -- and a short commentary in which Hans J. Lietzmann draws historical parallels between the work of the two courts. Similarly, the papers lack a consistent "sociological perspective," mainly because several contributors are lawyers or political scientists wedded to institutional or historical modes of analysis. Still, these essays contain important data about the workload and work ways of both institutions, providing judicial scholars with a more informed basis for assessing the comparative political roles of the two courts.

The editors have divided the essays into four parts. Part I introduces the reader to the general organization and political functions of the two tribunals. Robert Kagan's essay, "Constitutional Litigation in the United States" (chapter 1), is a lucid account of the impact that the political system and legal culture exert on the range and growth of constitutional adjudication in the Supreme Court. An aspect of culture and politics helping to explain the popularity and frequency of constitutional litigation, he contends, is the American belief in law as changeable, unpredictable, result-oriented, and interest-group driven. Another is the fragmented nature of the American governmental system. Alfred Rinken, by contrast, begins with an historical overview of constitutional review in Germany, continues with a description of the Constitutional Court's organization, jurisdiction, and procedures, and concludes with a discussion of how these measures have influenced the structure and scope of constitutional review. It remains for Hans J. Lietzman, as noted, to offer interesting comparisons between the exercise of judicial review in the two countries (chapter 3). These three essays are worth the price of the book.


The remaining three parts focus, respectively, on "Access and Case Selection," "Judicial Decision Making and the Role of Law Clerks," and "Structures and Processes of Implementation." Joel Grossman and Charles Epp's essay on the case selection process in the Supreme Court (chapter 4) should be read in tandem with Kagan's piece. They point out that the Supreme Court has transformed itself historically from an "essentially passive and reactive" institution into a major policy-making agency, emphasizing, as does Kagan, the contribution of litigation-oriented interest groups and a decentralized governmental structure in setting the Supreme Court's agenda. But they also contend, and rightly, that judicial decision-making is "a variable mix of institutional norms, individual preferences, case attributes, key political events, litigation pressures, and strategic considerations." Werner Heun's related essay on the German tribunal (chapter 5) describes the formal rules governing the admission of cases, along with an account of the efforts made to limit a workload that in recent years has matched the number of cases annually docketed in the Supreme Court. It also includes an important discussion of cases spawned by Germany's parliamentary system, highlighting the extent to which particular governmental structures define the content of constitutional case law. Finally, in an essay entitled, "Mobilization of the German Federal Constitutional Court" (chapter 6), Erhard Blankenburg examines the nature, sweep, and success rates of individual constitutional complaints -- about 5,000 per year -- which make up 95 percent of the Court's case load. Interesting tabular data classify these complaints by their regional origin, by their institutional source, by the fields of law out of which they arise, and by whether the complaining party was assisted by counsel. Readers familiar with the Supreme Court's appellate docket will find a sharply different litigation profile in the caseload of the Federal Constitutional Court.


Part III deals with the identity and role of law clerks in the two tribunals. Lester Mazor's description of the recruitment and functions of law clerks in the Supreme Court (chapter 7) distills most of what we know about their backgrounds and roles in the judicial decision-making process. Related essays on legal assistants in the Federal Constitutional Court by Joachim Wieland (chapter 8) and Otwin Massing (chapter 9) contain data fascinatingly different from the training and background of Supreme Court law clerks. Equally interesting from a comparative perspective is Massing's discussion of German law clerks. They perform many of the same tasks as their American counterparts, but they operate within an institutional setting that prizes consensus and discourages personalized opinions.

Part IV, finally, centers on the process of implementing judicial decisions. Lawrence Baum, drawing heavily on American judicial impact studies (chapter 10), concludes that compliance with Supreme Court decisions is "a highly imperfect process" and that "implementation behavior varies widely" depending on the nature of the office held by the "implementors" (i.e., judicial, legislative, or administrative), the policies they prefer, and the attitudes they hold toward the Supreme Court as an institution. Gawron and Rogowski, on the other hand, note that judicial impact studies constitute "a rather new field of research in Germany" and that German postwar political science has "generated very little empirical findings" on the process of implementation. They rightly point out, however, that national legislation declares that decisions on the constitutionality of statutes have the force of law and "the same legal status as parliamentary acts." Accordingly, the bulk of the essay (chapter 11) deals with parliament's response to Constitutional Court decisions, and the evidence shows a record of unvarying compliance, even in delicate situations where the Court has literally ordered parliament to revise legislation in accordance with its specific instructions.


In their introductory essay, Rogowski and Gowran ask whether "the U.S. Supreme Court [is] a constitutional court" and whether "we [are] comparing like with like." They point out significant differences in the organization, jurisdiction, staffing, and internal decision-making procedures of the two tribunals, but they might have said more about the significance of these differences. Both tribunals, as the editors note, have played formative -- and occasionally transformative -- roles in their respective political systems, but the debate over the legitimacy of judicial review is far more intense in the United States than in Germany. Three reasons explain the difference. First, the German Court's powers of constitutional review are clearly laid down in the Basic Law. Second, there is close to universal agreement on the German Court over the appropriate methods of interpretation and the rank order of these methods. Finally, the German judges appear to have a settled view of what constitutional law ought to achieve. No such agreement or settled view prevails in the Supreme Court. One sign of the German consensus on these matters is the rarity of personalized dissenting opinions in the Court's official reports. Out of 54 opinions published in the three most recent volumes on my shelf (98, 99, and 100), there were only three written dissents.


Finally, the editors appropriately emphasize the interplay between politics and "dispute resolution" in both tribunals. But what is involved in this process is the broader relationship between constitutionalism and democracy, prompting the following questions: Which is the better system of constitutional review? The American with the Supreme Court's ability to avoid deciding disputes it does not want to decide? Or the German with the Constitutional Court's limited capacity to define the content of its case load? Which tribunal best combines political independence with accountability or, to put it another way, which is more deeply rooted in democratic legitimacy? The Supreme Court staffed with life-time judges appointed by the executive; or the Constitutional Court whose judges are selected for limited terms of 12 years by a two-thirds parliamentary vote? And which system of constitutional review is most compatible with responsible government under a written constitution defined as a law of superior obligation? The Supreme Court confined to deciding only cases and controversies arising out of ordinary litigation? Or the Constitutional Court empowered to decide cases on abstract judicial review? CONSTITUTIONAL COURTS IN COMPARISON does not reach these issues, yet it provides a basis for a comparative evaluation of the merits of the two systems of judicial review.

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Copyright 2002 by the author, Donald P. Kommers.