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Germany Strengthens Constitutional Court Amid Far-Right Surge
By Drooid · · How we work
Legislative Reform to Shield the Court
On Thursday the Bundestag approved, and on Friday the Bundesrat confirmed with a two-thirds majority, a constitutional amendment that hard-wires key features of the Federal Constitutional Court into the Basic Law. The law fixes the number of judges at 16, sets twelve-year non-renewable terms and a maximum age of 68, and codifies the court’s two-senate structure. It also stipulates that judges remain in office until a successor is elected and that “blocking minorities” in either parliamentary chamber cannot prevent appointments; if the Bundestag fails to reach a two-thirds quorum, the Bundesrat may appoint the judge. The amendment was drafted under former Justice Minister Marco Buschmann (FDP) with the backing of the Social Democrats, Greens, Christian Democratic Union (CDU)/Christian Social Union (CSU) and the Left Party. The far-right Alternative for Germany (AfD) voted against the measure, arguing it was imposed by “self-appointed exclusive democrats.”
Background and European Context
The reform comes as the AfD polls at roughly 18% nationwide and has been classified by German intelligence agencies as a threat to the constitutional order. Recent judicial overhauls in Poland—where the Law and Justice Party (PiS) altered the Constitutional Tribunal and created a disciplinary chamber for the Supreme Court—prompted mass protests and a 2019 European Court of Justice ruling that the changes violated EU law. Similar concerns were raised about Hungary’s 2013 reforms under the Fidesz party. German legal scholars, citing these examples, argued that the German court needed stronger safeguards against “court-packing” and other partisan interventions.
Official Statements & Responses
Interior Minister Nancy Faeser said the amendment is intended to keep “the enemies of our democracy” from gaining a foothold in the judicial system. Ulrich Karpenstein, vice president of the German Bar Association, welcomed the proposals as “important and intelligent” measures that protect judges from political interference. The amendment also reflects a consensus among the governing coalition that the court’s independence is essential for safeguarding fundamental rights and free elections.
Criticism & Opposition
AfD Bundestag member Fabian Jacobi condemned the law as an attempt by the “party cartel” to exclude the AfD from judicial appointments, accusing other parties of projecting an image of the court as a tool of power. Stefan Martini, senior researcher in public law at Kiel University, warned that requiring a two-thirds majority for judge selection could create new blockades and reduce democratic legitimacy, urging caution in embedding procedural rules into the constitution.
Verbatim Quotes
- “The Constitutional Court is central for democracy and for the rule-of-law in order to protect fundamental rights, the separation of powers and free elections,” — Ulrich Karpenstein
- “It is important that future changes to the Federal Constitutional Court Act, and in particular the quorums for the election of judges and decisions by the Federal Constitutional Court, can no longer be amended by a simple majority of the Bundestag,” — Karpenstein. This
*The article was first published in February 2024 and updated on July 23 2024, with a further update scheduled for October 11 2024 and an additional revision on December 20 2024.*