Constitutional Courts in Comparison

The US Supreme Court and the German Federal Constitutional Court

Ralf Rogowski, Thomas Gawron, Ralf Rogowski, Thomas Gawron

• Publisher: Berghahn Books
• Year: 2016
• Print ISBN: 9781785332739
• eBook ISBN: 9781785330964
• Edition: 2
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

Constitutional litigation in general attracts two distinct types of conflict: disputes of a highly politicized or culturally controversial nature and requests from citizens claiming a violation of a fundamental constitutional right. The side-by-side comparison between the U.S. Supreme Court and the German Federal Constitutional Court provides a novel socio-legal approach in studying constitutional litigation, focusing on conditions of mobilisation, decision-making and implementation.

This updated and revised second edition includes a number of new contributions on the political status of the courts in their democratic political cultures.

Part I

Access and Case Selection

Chapter 1

Constitutional Litigation in the United States

Robert A. Kagan and Gregory Elinson

Since the establishment of constitutional courts at the national and supranational levels in Europe, European legal scholars have become more interested in studying constitutional courts, such as the German Federal Constitutional Court and the European Court of Justice, in comparative perspective. Their attention, understandably, has been directed to the United States, where courts have long had the power to declare legislative policies and administrative actions unconstitutional. This chapter seeks to advance that comparative effort, using the U.S. experience to analyze the social, political, and legal factors that encourage high rates of constitutional adjudication.

Important decisions of constitutional courts often resemble volcanic eruptions, reshaping the landscape of political and administrative action, usually in small ways but occasionally in large ones. Legal scholars typically focus on the justifications offered for constitutional decisions. Political scientists, in turn, speculate about the political influences on judges’ approaches to decision making and how the courts’ rulings might affect the conduct of government. Yet a different set of issues might also be addressed. To continue the “volcano” metaphor, what are the geological (i.e., political, economic, or legal) conditions that lead to constitutional eruptions? How do different political and legal structures influence the frequency and nature of constitutional adjudication? These questions, which concern the mobilization of constitutional courts, are the subject of this chapter. In its first section, we provide a rough map of the frequency of constitutional litigation in the United States, particularly since the 1960s. Frequent recourse to constitutional litigation, however, does not seem to be an inevitable companion of judicial authority to issue constitutional rulings, for that authority existed in the United States for two centuries before reaching the levels of judicial activism of the last five decades. Therefore, as the rest of the chapter unfolds, we explore the legal, sociological, and political factors that appear to explain the significant increase in constitutional litigation in the United States over the past half century.

We begin in the following section by discussing the malleability of constitutional law in the United States. Theories of how the U.S. Constitution should properly be interpreted are strongly contested by legal scholars, high court judges, and politicians—as is the interpretation of many important provisions and principles in the constitutional text. Not infrequently, changes in the composition of both the U.S. Supreme Court and state supreme courts lead to the rejection or reinterpretation of existing precedents or doctrines. Consequently, lawyers representing ordinary litigants and political interest groups are encouraged to file lawsuits, defenses, and appellate briefs that explicitly challenge existing constitutional law. The malleability of American constitutional law, we go on to argue, stems from three interrelated socio-political factors.

The first of those factors, discussed below, is the American system of judicial selection. Unlike most European judiciaries, American judges are not selected, trained, and promoted through an orderly, bureaucratically controlled system (Damaska 1986). Instead, American appellate judges at both the state and federal levels are selected by overtly political processes. At the state level, despite some degree of variation, most judges are chosen by popular vote.¹

At the federal level, where judges are nominated by the president and confirmed by the Senate, nominees are appointed largely on political grounds for having served their political party well or demonstrated that they have political values favored by the appointing politician. As levels of political polarization in the United States continue to increase (particularly at the elite level), the partisan nature of judicial selection has only intensified. Indeed, in recent decades, political interest groups and political party leaders often have conducted open campaigns for and against the appointment of particular candidates for the Supreme Court based on those judges’ perceived ideological proclivities (Caldeira, Wright 1988). And at the state level, intensely partisan, interest-group-funded elections for judicial positions on state supreme courts—once an extremely rare phenomenon—have become increasingly common (see Gibson 2008 for state supreme court campaign activity and Gann Hall 2001 for state supreme court elections).

The second factor, which we discuss in this chapter’s penultimate section, is the diverse army of ideologically motivated advocacy organizations and lawyers that specialize in constitutional litigation to advance their policy goals. The expansion of this “demand side” part of the litigation equation is linked, the chapter shows, to the “opportunity structure” (McAdam 1999) created by the distinctively “instrumentalist” legal and judicial culture of the United States. Much American legal scholarship—and much of the politically experienced American judiciary—values pragmatic problem–solving or “doing justice,” even at the expense of uniform and predictable application of law (Atiyah, Summers 1987: 404). In combination with the politicized appointment system, American judges’ diverse individual backgrounds, political attitudes, and notions of justice help perpetuate a legal culture that views the Constitution as a politically malleable document, one that can be harnessed to an array of political projects and purposes. Political interest groups and lawyers, faced with politically chosen judges with a flexible set of constitutional precedents and shifting interpretations of key constitutional provisions, remain ever hopeful that the reasoning in a dissenting opinion will grow into the basis for a majority opinion at some later time. Alternatively, they seek to offer the justices a set of creative legal arguments, often built on signals the justices themselves have sent in previous written opinions, which they hope will form the basis of a substantial reassessment of previously settled constitutional doctrine.

In the final section, we consider some of the structural aspects of the U.S. political system that drive groups and individuals into the judicial system in the hope that the flexibility of American constitutional interpretation will work to their benefit. Compared to other advanced industrial democracies, the United States is characterized by a high degree of political fragmentation. Political power under the U.S. Constitution is divided in many different ways: between state and federal governments, among the three branches of government, and even within the legislative branch itself. Because the legislative and executive branches of the national government in Washington do not have direct authority over city mayors, police departments, school boards, magistrates, and correctional officials, reformers often have pushed for judicial rulings that expand the rights of individuals and minority groups to pursue their grievances against local governments in court. In this way, constitutional litigation performs a coordinative function in the American federal system (Kagan 2001). In addition, the difficulty of assembling successful lawmaking coalitions at either the state or federal level means that political winners and losers both look to the courts as an alternative political forum, either for blocking unfavorable policy changes or for enforcing hard-won legislative bargains.

On the Volume of Constitutional Adjudication in American Courts

In many countries, constitutional adjudication is concentrated in specialized constitutional courts, and a significant proportion of constitutional adjudication is triggered by petitions filed by other courts, governments, or political parties (see Tate, Vallinder 1995). In the United States, however, constitutional issues can be raised in any ordinary civil, criminal, or administrative law case, in any lower court—county, state, or federal. Much constitutional adjudication is based on state constitutions rather than the U.S. Constitution. Trial court judges, for example, are legally obligated to decide any properly raised constitutional claim. Any criminal defendant can argue, in any court, that the law or order on which the claim against him or her is based, or the procedure by which it is implemented, violates the state or the federal constitution. Moreover, any individual or organization whose interests are directly and significantly affected by governmental action can assert a defense or bring a lawsuit against the relevant enforcement officials, seeking a declaration that the law or enforcement procedure violates a constitutional provision. Consequently, the U.S. Supreme Court decides only the tip of the iceberg of constitutional litigation—the most intensely controversial and politically contested cases, winnowed from the mass of constitutional decisions in state supreme courts and the lower federal courts.

Because constitutional issues are raised in the course of ordinary litigation in thousands of lower courts, and because court administrators’ reports typically do not reveal the incidence of constitutional issues, it is difficult to determine with precision the overall incidence of constitutional adjudication in the United States. At best one may rely on estimates of the volume of constitutional issues in state and federal appellate courts.

State Supreme Courts

“Over the past thirty years, state courts have eclipsed the U.S. Supreme Court in shaping the meaning of constitutional values, both in their home states and throughout the nation. … The volume and import of state supreme court decision-making is truly awesome” (Devins 2010: 1635–1636). In 2009, according to the National Center for State Courts’ Court Statistics Project, state appellate courts (including both supreme courts and “intermediate appellate courts,” located between trial courts and the supreme court in the state judicial hierarchy) handled more than 273,000 cases (LaFountain et al. 2011). Of these, the fifty American state supreme courts received over just over 82,000 cases (mostly appeals or petitions for review, plus a small number of “original jurisdiction” disputes). The state supreme courts decided roughly 10,000—an average of approximately 270 per state (ibid.; see Devins 2010 and Posner 2005 for a similar set of estimates).² The number of formal, written state supreme court opinions per year is still smaller—approximately 31 percent of the total number of dispositions.³ The selectivity of state supreme courts in reviewing cases from intermediate appeals courts, particularly in states with large populations, means that for most constitutional disputes, the final decisions are made by intermediate appellate courts or state trial court judges (Eisenberg, Miller 2009: 1459).⁴

Nevertheless, constitutional adjudication in state supreme courts appears to be increasing. In a representative sample of state supreme court opinions in the 1940–1970 period, 14.6 percent discussed constitutional issues, as compared to 8.7 percent in the 1905–1935 period (Kagan et al. 1977; Kagan et al. 1978). By 1990, this figure had risen to approximately 21 percent, as reflected in a study of seven state supreme courts (California, Massachusetts, New Hampshire, New York, Kansas, Louisiana, and Virginia) (Gardner 1992). If we apply that percentage to the estimated 3,100 annual published opinions in all fifty state supreme courts, they collectively decide roughly 650 constitutional issues per year. A large majority of these opinions involve state, rather than federal, constitutional issues. Although the proportion of constitutional cases on state supreme court dockets remains considerably smaller than it is for the U.S. Supreme Court, cumulatively the state courts together decide many more constitutional issues. As Devins (2010: 1635) points out, in the year 2005, the California Supreme Court alone issued 37 opinions on state constitutional issues, whereas the U.S. Supreme Court issued only 30 opinions dealing with federal constitutional issues.⁵

The increase in constitutional cases in state supreme courts may reflect changes in court organization (in particular, greater discretion in case selection), a significant rise in criminal cases (which have entailed more constitutional issues since the Warren Court’s “due process revolution” in the 1960s) (Brace, Butler 2001; Kritzer et al. 2007), or the simple willingness of state supreme courts to assert themselves more forcefully in a number of important policy domains (Brace, Gann Hall, Langer 2001: 86; Langer 2002).⁶ Relatedly, as the federal courts, including the U.S. Supreme Court, have become more politically conservative in the last twenty-five years, advocates asserting individual rights claims have faced greater incentives to make constitutional claims in state courts.⁷

Did these constitutional cases in state supreme courts present “difficult” (rather than frivolously raised, or doctrinally and politically unimportant) constitutional issues? One indicator that they tend to involve serious issues is that in the 1940–1970 period, 19.4 percent of the sampled opinions in which a constitutional issue was discussed resulted in a declaration of unconstitutionality. In state supreme courts that had discretion to select their caseloads, that figure was 30 percent (Kagan et al. 1978) (and as noted above, the number of courts with broad case-selecting discretion has grown since that study was completed). Similarly, and more recently, Emmert (1992) finds that in the period between 1981 and 1985, approximately 20 percent of state statutes that were challenged on constitutional grounds before state supreme courts were struck down. And in 1996, for example, one study found that “each state supreme court decided an average of eleven constitutional challenges to state law … [and] on average, each court invalidated two of these eleven” (Brace et al. 2001: 86).

Finally, in some states and on some controversial issues—same-sex marriage, school finance equity, racial discrimination, voter registration, abortion funding, and religious liberty, to name a few prominent examples—some state supreme courts have asserted constitutional protections that exceed those embodied in U.S. Supreme Court opinions (see, e.g., Reed 1998 concerning school finance litigation at the state level; Williams 1997 and Devins 2010 for broader overviews).

Federal Courts of Appeal

Between 1986 and 2004, the dockets of the eleven federal courts of appeals (to which dissatisfied litigants in federal trial courts, known as U.S. District Courts, may appeal) increased by 82.4%, rising from roughly 30,000 cases per year to close to 60,000 (Posner 2005; Stras 2007). By contrast, in 1959 the federal courts of appeal decided only 3,753 cases (Posner 2005). The records of the federal Administrative Office of the United States Courts do not show how many involved constitutional issues. Nevertheless, as with state supreme courts, it seems clear that both the absolute and relative numbers of constitutional issues considered by federal appeals judges have grown over the past several decades. A study of three circuit courts of appeal (the D.C. Circuit, the Second Circuit, and the Fifth Circuit) for the years 1965–1967 found that these three courts considered constitutional questions in approximately 9 percent of their opinions (Howard 1973). Although Howard’s study has not been updated, we can conservatively estimate the number of constitutional questions in recent decades based on a study of federal district courts.⁸ Approximately 21 percent of the 121,986 cases filed in federal district courts between 1990 and 1995 raised constitutional claims (Kreimer 1997: 451). Applying this percentage to the 43,426 cases filed in the federal courts of appeal in between March 2010 and March 2011, we ca...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Foreword (second edition)
• Foreword (first edition)
• List of Figures and Tables
• Introduction: Constitutional Litigation as Dispute Processing: Comparing the U.S. Supreme Court and the German Federal Constitutional Court
• Part I. Access and Case Selection
• Part II. Decision Making
• Part III. Implementation
• Part IV. Comparative Perspectives
• Index