Monitoring the German Federal Constitutional Court’s role in the system of checks-and-balances
The German Federal Constitutional Court (GFCC) is a key actor in the German political system playing a crucial role in the system of checks and balances. However, we do not know much about how to characterize, analyze and monitor the role of the Court empirically. In order to stipulate respective research, we need to link information across different political institutions and account for contextual and societal factors within a political system. This leads to a number of theoretical and empirical challenges before being able to address the role of the GFCC — which is fundamentally important to understand and monitor how democracy works. The theoretical challenge is that we need to combine insights from different academic disciplines such as law and subfields of political science; especially from judicial politics, legislative research, and political sociology. Given that we need to evaluate both inner-court judicial action as well as intra-institutional interaction between the judiciary and other branches of government, the empirical challenge is that we need to create a database to empirically analyze the inner-workings of the Court and link it to further data to trace intra-institutional interactions between various political actors. To close this gap, Thomas Gschwend and Christoph Hönnige originally launched this project as part of a research project funded by the German Research Foundation (DFG) and now together with Benjamin G. Engst continue to work on it. The Constitutional Court Database (CCDB) enables scholars to conduct in depth as well as large-N analyses on the German Federal Constitutional Court using a wide array of variables. Even more, the database goes beyond the Court: statutes challenged in the Court are linked to data on the respective legislative process. In addition, the database includes information on the political and societal situation at the time of a decision such as party positions and survey data. As a result, the Court’s behavior can be embedded in a broader context. The database covers thirty-eight years from 1972-2010.
The Comparative Aspect
In modern democracies, highest courts with constitutional review powers are commonly separated into two groups: courts designed following the Anglo-American supreme court model and courts designed following the Kelsenian Austrian-German constitutional court model. In countries that follow the former tradition, the supreme court is the highest appellate court in the regular legal hierarchy. The court reviews constitutional cases and decides on disputes between parties. On the contrary, in the Austrian-German constitutional court model, constitutional courts are empowered to exercise constitutional review only. They do not decide on substantial issues raised in petitioners’ referrals and are positioned somewhat separate to the regular appellate courts. The GFCC is a prominent and strong, yet archetypal, constitutional court established as one of the first constitutional courts following the Kelsenian Austrian-German model of constitutional review. Analyzing this Court provides important insights into the system of constitutional review in contrast to the widely studied system of judicial review. Although archetypal, the GFCC is a rather typical case – representative of many constitutional courts in newly established democracies. Research on European constitutional courts lags behind research on the US Supreme Court with regard to theory, data, and methods. Scholarship focusing on the latter can rely on the Supreme Court Database. This database – albeit being designed as a dataset rather than as a database – is an established tool available to scholars and journalists alike to empirically evaluate the decision-making of the US Supreme Court and serves as a role model for comparable database projects; e.g., the Israeli Supreme Court Database. Nevertheless, similar sources to provide systematic data for in depth and large-N studies are rare for constitutional courts in Europe.
The Constitutional Court Database (CCDB)
The Constitutional Court Database (CCDB) is the major outcome of the research project and consists of four layers. It links (1) 2,006 senate decisions, (2) 3,284 different proceedings referred to the German Federal Constitutional Court (GFCC) between 1972 and 2010, (3) legislative data and information from the political environment, as well as (4) public opinion data. The relational structure of the multi-layered database is well suited to connect information across the four layers in flexible ways. This allows for taking different perspectives on the GFCC as a legal, political, or societal actor and as a representative case of a highest court exercising constitutional review.