The Occurrence of Separate Opinions at the Federal Constitutional Court

Front matter

The Occurrence of Separate Opinions at the Federal Constitutional Court

An Analysis with a Novel Database

Caroline Elisabeth Wittig

Contents

Summary

Acknowledgments Table of Contents List of Figures List of Tables

1 Introduction 1.1 Courts as Political Actors 1.2 Studying Separate Opinions 1.3 The Necessity of New Approaches Theories of Judicial Decision-Making

Introduction

[I]t is not the individual juryman or councillor or member of the assembly in whom authority rests, but the court, the council and the people, while each of the individuals named (I mean the councillor, the members of assembly and the juryman) is a part of those bodies. (Aristotle, Politics, III, 6; 1282a)?

“Aristotle (2007)

Approximately 2300 years ago, Aristotle identified three main columns a working polity rests upon: the court, the council, and the people. More than two millenniums later, this observation is still valid. Democracies commonly perceived as successful employ these exact parameters: citizens exert their power through elections; a council! governs the polity; and courts, mounting guard on both, the people and the elected council, decide disputes between them. In doing so, courts guide the communal life. Therefore, citizens, parliaments, and courts

!Nowadays an elected body can be said to be the cornerstones of political systems - in Ancient Greece as well as in the 21st century.

This dissertation is concerned with one of these key institutions, namely courts. It aims at explaining why and under what conditions judges deliver separate opinions. While in some cases judges publish their individual opinion subsequent to the main ruling - be it concurring or dissenting - in other instances, they forego this opportunity. The question why and when they choose the different options at their disposal is investigated for a court that possess one of the strongest positions in a political system we know today: the German Bundesverfassungsgericht (Federal Constitutional Court, hereinafter FCC).

Prior to addressing separate opinions, however, three questions have to be answered: First, why is it worth studying courts? Even more, why is it worth studying the FCC? Second, why are separate opinions of special interest given that they are not even a binding part of a court’s decision? Third, which means need to be employed in order to conduct thorough analyses.

1.1 Courts as Political Actors

The idea of a court being an indispensable institution for cohabitation of a large group of people has endured since Aristotle’s Politics, written around 300 before Christ. In the ancient Roman empire through the Middle Ages to today, every society has relied on an actor that is responsible for deciding verdicts. Even in dictatorships courts are used to exercise power. This shows that courts are, indeed, an integral part of a political system. If aiming at learning how a political system works, which actors are influential, why, and how, it is necessary to enhance the understanding of citizens, legislature, and executive, but also and specifically of the judiciary.

This is why various scholars have engaged in research on judicial politics. In the United States courts have been subject of interest for political scientists since the 1950s (e.g. Dahl 1957). Over the past decades, other regions such as South America or Europe have started to pay more attention to courts as political actors, as well. Nevertheless, given that a considerable amount of research has been conducted, for example, on the US Supreme Court and on courts in South America, investigating a further court will add substantial benefit to science: First, most analyses have focused on Supreme Courts. Less attention, however, has been paid to constitutional courts of the Kelsenian type. This is astonishing insofar as during the third wave of democratization (Huntington 1993) many courts of this nature have been established, modeled on the FCC. Nevertheless,

1.1. COURTS AS POLITICAL ACTORS 3 research on them has not reached the level of that on the US Supreme Court and similar courts.

Therefore, it is necessary to gain knowledge on Kelsenian constitutional courts. Since the FCC has served as blue print for many courts throughout the world, investigating this particular court does not only offer insights on this single institution. It rather provides knowledge on many other courts, as well. From a more specific point of view, it is crucial to analyze the FCC’s role within its political system. While overseeing all state authority, be it legislature, executive, or judiciary, the Court itself cannot be controlled. Even more, it has formed a tradition of clearly formulating directives for the legislator how to author a new law that meets constitutional requirements. Thus, some have raised the question if the FCC is a surrogate legislator (e.g. Scholz 1999). Given these extensive authorities, it is essential to learn more about this key actor in the German political system as well as in society.

Moreover, the FCC’s decisions can unfold influence that exceeds Germany. During the Euro Crisis, beginning in 2010, the countries of the Euro Zone were planning an organization, the European Stability Mechanism (ESM), that would provide loans and guarantees to financially collapsing member states and in doing so prevent them from leaving the Euro Zone. In Germany, being the largest share holder of this bailout fund, opposition arouse. Around 12,000 citizens filed a constitutional complaint accompanied by a dispute between high state organs, challenging the Bundestag’s law on joining this organization. With Germany opting out of the fund, however, the Euro Zone would clash, many actors and analysts argued. Moreover, a large economic entity like the Euro Zone falling apart would negatively impact the world economy to a huge extent. The decision of the FCC whether to uphold that law can therefore be called highly influential to the world economy. “Americans had spent months speculating breathlessly how their own Supreme Court might vote on a constitutional challenge to [...] healthcare reform” Collings (2015, xxix) describes the situation. “[B]ut the rest of the world turned its attention to [...] the German Federal Constitutional Court; and [...] a constitutional challenge to the Bundestag’s approval of the European Stability mechanisms (ESM)” (2015, xxix). When the FCC rendered its decision to uphold the law, the stock markets rose, and two weeks after the Court’s decision the treaty establishing the ESM came into force. This incident exemplifies that the FCC possesses not only domestically a strong position. Its rulings can also have tremendous international impact.

From what has been said so far, it is obvious that studying courts in general and specifically the FCC is a necessity. However, as I am aiming at investigating separate opinions, it needs to be discussed in what way this contributes to gaining relevant knowledge on courts in general and on the FCC in particular.

1.2 Studying Separate Opinions

Separate opinions are a tool for judges to articulate arguments and thoughts they perceive as crucial but did not find their way into the decision itself. Subsequent to the main body of the decision, judges can express their disagreement with the result or with certain rationales and outline their point of view. Likewise, they can, although agreeing with all parts of the judgment, add further arguments, which they were not able to convince their colleagues of. Separate opinions will be portrayed in more detail in Chapter 3. But what are the benefits of studying them? Drawing on Aristotle, it is the courts as such that possess authority rather than single jurymen. However, “each of the individuals... is a part of those bodies” (Aristotle, Politics, III, 6; 1282a).2 Hence, while the power rests in the court as a single actor delivering one decision, it is a group of people that generates this result. Consequently, the power feeds on the sum of the judges’ individual assessments of a case. Thus, if it is important to enhance the understanding of how and why a court exerts its power, it is necessary to study the parts that add up to the final result. In other words: We have to analyze intra-court processes and dynamics in order to gain knowledge on why a decision was cast in a particular way.

Obviously, it is the judges’ voting behavior that is the key element of such an undertaking. At the FCC, however, research faces one crucial challenge: We barely have any information about the judges’ voting behavior. Unlike in the United States, in Germany the judges do not reveal their individual votes. Thus, the only individualized information available are separate opinions as they are singed by their author(s). It follows that studying separate opinions at the FCC is inevitable in order to understand this powerful actor.

Especially in the United States, the high value of analyzing individual votes of judges has been recognized for a long time. Ever since, separate opinions have been extensively studied. In other countries, research on separate opinions has been conducted, as well, and different theories have been employed to explain their occurrence. This will be demonstrated in Chapter 3. However, the existing theories of judicial decision-making all suffer from various deficiencies, especially when applied to separate opinions. Moreover, there are almost no studies on the FCC. The following sections will show this in more detail.

Translation by Rackham (2007)

Judicial decision-making has been examined by a large variety of researchers. Legal scholars, political scientists, as well as psychologists and philosophers have endeavored to examine the behavior of judges from different angles with different approaches and explanations. As a result, manifold theories have been established, some of them even contradicting. However, although addressing valid points, all of them fall short when it comes to explaining separate opinions. The logic of some theories does not even allow for separate opinions. Other frameworks only account for certain aspects of a judge’s decision-making while neglecting that there may be various groups of influencing parameters. Also, applying these approaches to separate opinions shows that they only address why separate opinions do occur under certain circumstances, leaving aside to elucidate those cases in which no separate opinion can be observed. Given that at many courts the number of separate opinions is low, these theories are unable to provide sufficient explanations. Moreover, they have been mainly developed for courts in common law jurisdictions. Therefore, they cannot account for the specifics of courts from other systems and other legal traditions. As procedural constraints, perceptions, costs, and benefits of judicial decision-making can vary across systems, explaining the judges’ behavior requires a broader basis, which allows for more generalization.

In the following, I will expound the main theories of judicial decision-making and demonstrate in detail that they contain multiple deficiencies when applying them to explaining separate opinions.

1.3.1 Theories of Judicial Decision-Making

Research on judicial decision-making can be differentiated into three main theoretical strands. First, at the heart of the so-called legal model is the notion that judges find the solution to a legal question by neutrally applying the law through interpretive methods. Second, by contrast, the attitudinal model assumes that judges decide according to personal preferences. Third, strategic approaches explain the judges’ decisions by arguing that they will factor in other actors’ behavior in order to reach the best possible decision for them, acknowledging that the personally desired perfect outcome is unachievable due to others’ preferences and potential actions.

Legal Model

The legal model poses that judges decide predominantly by means of the law and focuses on the use of jurisprudential methods. Put in a simple formula, one can describe the baseline of the legal model as “Rules + Facts = Decisions” (Dyevre 2008, 27). When faced with a constitutional question the judges will look into the constitution, they will employ standard methods of interpretation, and will finally find a solution for the legal problem at hand. An example for a method that is common to many legal systems is that of investigating the framers’ original intent. The answer to the question what the authors of the constitution meant and what they aimed for when creating this particular rule is supposed to elucidate how the current legal problem should be solved. This shows that the underlying assumption of the legal model is that “there is a set of fundamental values and neutral principles that can be inferred from the overall spirit of the Constitution” (Pacelle, Curry, and Marshall 2011, 30) and that a constitution contains “enduring principles, even if its provisions do not provide specific answers to a particular case” (Pacelle, Curry, and Marshall 2011, 31). Thus, from the perspective of the legal model’s proponents, it is not possible for judges to decide preference-based. The law will constrain these preferences, imposing a solution on the judges. Instead, it is the law and the interpretation through “judicial handcraft” (Isensee 1996, 1091, own translation) that drives a judge’s decision.

Attitudinal Model

In strong contrast to the legal model stands one of the most widespread theories in judicial politics research, the attitudinal model. Developed for the US Supreme Court, it originates from the early work of Pritchett (1963), Schubert (1965), and Murphy (1973) and bases on the assumption that judges are predetermined by their attitudes. They have ideas and preferences according to which they decide. Several scholars have further developed this approach to explaining judicial decision-making over the past decades (Rohde and Spaeth 1976; Segal and Cover 1989; Segal and Spaeth 1993, 2002). Arguing that Supreme Court justices are at the pinnacle of their career, have lifetime tenure, and do not have to be responsive to any constituency, they assume that the judges are unconstrained and can freely pursue their interests when ruling. They show that the judges’ decisions are driven more by what Rohde and Spaeth call “a set of interrelated beliefs about at least one object and the situation in which it is encountered” (1976, 76) than by legal considerations. Judges are assumed to have personal opinions and ideas on how the world ought to be. Preferences as to which policy serves these perceptions best guide the judicial decision-making process and determine how a judge answers the crucial questions. In other words:

This model holds that the Supreme Court decides disputes in the light of the facts of the case vis-a-vis the ideological attitudes and values of the justices. Simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he was extremely liberal. (Segal and Spaeth 2002, 86)

This means that a judge evaluates her personal position on a certain question and from that she derives the result. Therefore, in the attitudinal model the judge is perceived as a sincerely behaving actor. Nevertheless, attitudinalists have to acknowledge that interpretive methods are cited in court rulings. From their standpoint, however, methods as purported by the legal model are only a cloak in which judges pursue their personal goals. Given that judges at high courts “lack electoral or political accountability, ambition for higher office, and comprise a court of last resort that controls its own jurisdiction” (Segal and Spaeth 1993, 69) they have no incentive to not follow their preferences. Consequently, attitudinalists argue that by citing standard methods of interpretation in a ruling, judges cover that their attitudes drive the decision instead of making substantial use of these methods.

One can differentiate between two strands in the development of the attitudinal model. One is a rather psychological approach focusing on preexisting personal attitudes imprinting the judges’ behavior. The other one assumes that judges are policy seekers: A judge has to decide the way she does because her personal policy preferences demand it.

The roots of the psychological approach can be found in Schubert’s “The Judicial Mind” (1965). In this work Schubert develops what Hammond, Bonneau, and Sheehan describe as “attitude-activation version of the attitudinal model” (2005, 41). He assumes judges to have preexisting personal values and perceptions that constitute the basis for their decision-making. Those attitudes are activated when exposed to certain stimuli, that is the “questions to which individuals respond” (Schubert 1965, 27). Positioning judges based on their ideology (ie. on a scale ranging from liberal via moderate to conservative) and the case according to its characteristics in the same ideological space, Schubert argues that depending on how far away a judge is located from the case she will either uphold the decision or overturn it.

While the psychological take on the attitudinal model is concerned with preexisting attitudes, it is actual policy goals of the judges that are key to another approach of the attitudinal model. For Rohde and Spaeth as one of the first proponents of this idea the primary goals of Supreme Court justices in the decision-making process are policy goals. Each member of the Court has preferences concerning the policy questions faced by the Court, and when the justices make decisions they want the outcomes to approximate as nearly as possible to those policy preferences. (1976, 72, emphasis in the original)

What is common to both understandings of the attitudinal model is that judges employ sincere behavior when deciding on a case. According to the model’s proponents, judges either follow their preexisting attitudes that have been activated by case stimuli. Or they have certain preferred policy goals the implementation of which they have in mind when deciding on a case.

Unlike the attitudinal model, the strategic model explains judicial decision-making by means of strategic rather then sincere behavior as will be outlined in the next section.

Strategic Model

Key assumption of this model is that judges are rational actors who pursue their goals strategically (e.g. Murphy 1973; Epstein and Knight 1998; Hammond, Bonneau, and Sheehan 2005). It turns from looking at the individual judge only to taking into account the fact that judicial decision-making takes place in an environment in which other players act and pursue their goals, as well. Thus, in order to successfully establish a policy in their interest, judges have to regard other actors’ thoughts, goals, and behavior. Epstein and Knight being among the strongest proponents of the strategic model assume that judges are strategic actors who realize that their ability to achieve their goals depends on a consideration of the “preferences of other actors, the choices they expect others to make, and the institutional context in which they act” (1998, 10).

This means that they cannot always pursue their ideal policy position; being constrained by other actors’ preferences they can only maximize it to a certain extent. They may have to compromise in order to achieve the best possible result. Thus, unlike proposed in the attitudinal model, judges acting strategically will not make their decision solely based on their desired outcome and independent of their environment. They will rather be guided by strategic considerations regarding how to maximize their utility.

In this context, two levels of strategic behavior exist: First, interaction among the judges within the panel and, second, interaction of the court as a whole with outside actors, namely the other branches of government or society. The intra-court approach of strategic models argues that judges decide strategically instead of sincerely as posited by the attitudinal model because they are constrained by other judges. As there are diverging ideas on the panel but only one outcome — at least only one that is binding - the judges will bargain over a case in order to deliver a ruling that is as close to their own ideal result as possible (e.g. Maltzman, Spriggs, and Wahlbeck 2000; Hammond, Bonneau, and Sheehan 2005). This means, however, that they have to compromise. As a result, they have to “move from their sincere preferences in response to colleagues” (Pacelle, Curry, and Marshall 2011, 40).

The second type of the strategic model, commonly referred to as the separation of powers model, focuses on the court on the aggregate level rather than on the individual judge. It explains judicial decision making in view of the fact that it is governmental actors who have to comply with the court’s rulings. In order to establish a new policy, the court’s decision alone is not sufficient. It requires further actions by the legislative or the executive branch. Otherwise, the policy exhibited in the decision will not be put to use since the court itself cannot enforce the demands of its rulings. Thus, the judges need to take into consideration the governmental actors’ behavior and preferences.

As a further constraint Epstein and Knight identify that judges operate within the greater social and political context of the society as a whole, they need to be attentive to the informal norms that reflect dominant social beliefs about the rule of law in general and the role of the [...] Court in particular. (1998, 138)

Consequently, proponents of the strategic model argue that in order to maintain the court’s legitimacy, judges will find a solution that answers to the norms and beliefs of the public. By supporting the court, the public vests power in it as refraining from implementing a decision is costly for example for the legislator. By contrast, if the court lacks trust it loses its main instrument of enforcement. Thus, when ruling on a case judges will take into consideration what is acceptable for the society. Therefore, they will act strategically as to satisfying the public at least to a certain extent.

Thus, the separation of powers model argues that judges consider the behavior of crucial actors, namely the public, the legislature, and the government when ruling. They balance out these actors’ preferences and align their decision accordingly in order to achieve the best possible outcome.

However, when looking at these theories, there are several reasons why they fall short, especially with regard to explaining the emergence of separate opinions. In the following, these flaws will be pointed out.

1.3.2 Deficiencies of the Theories

The models delineated above provide different approaches to explaining judicial decision-making. However, none of them is capable of covering the entire realm of aspects that come into play when judges decide on a case. This holds true for the process of judging in general and even more for separate opinions. As depicted above, the legal model assumes that it is solely the law and its application that lead to a correct final outcome. However, if rules together with facts generated an unequivocal legal outcome just as one and one undoubtedly sum up to two, it would be impossible to see judges arguing in favor of diverging results. If the judges have binding rules, that is interpretive methods, and apply them to the facts of the case they should all come to the same solution. According to this logic there is no room for differing points of view on a legal problem. Reality proves, however, that not all decisions are unanimous and that dissents and concurrences do exist. Therefore, the legal model cannot provide profound and consistent explanations for non-unanimous voting results and separate opinions. Over the twentieth century, scholars have begun to question the legal model (cf. Llewellyn 1930; Segal and Spaeth 1993). Also, other research traditions, today even legal scholars, admit that there is considerable room for judicial discretion (cf. Schlink 2007). The language of the law is not unambiguous, and interpretive methods are not predetermined fixed rules the application of which offers only one clear-cut solution. Furthermore, the judges’ personal preferences are unlikely to disappear entirely when deciding a case. Therefore, the legal model is not only unable to elucidate why and when disagreement emerges. Even more, the existence of separate opinions and specifically those opinions that criticize either the wrong use of methods of interpretation or a lack thereof prove the pure legal model wrong.

Nevertheless, legal aspects do play a role. Although judges have considerable leeway, they have to rule on a legal basis, which provides a framework for their arguments — in the case of constitutional courts obviously the constitution. They have to decide under the terms of the constitution and have to base their rationale on its logic and fundamental concepts. Even more, a constitution sets certain boundaries. A bold example is a ban of the death penalty: If a constitution prohibits death penalty, there is no room for discretion for the judges. Under this condition, as soon as a law allows for capital punishment the judges have to declare it unconstitutional. This may be an extreme case but it illustrates that — contrary to the assumptions of other theories — the law as such does play a role in judicial decision-making by prohibiting the judges from purely ruling as they personally wish to. As a consequence, leaving the influence of law entirely aside does not give a full picture of how judges decide. Rather, “precedent and legal factors play a role but are part of a broader calculus that the court and individual justices must undertake” (Pacelle, Curry, and Marshall 2011, 32).

Similar to the legal model, the attitudinal model also falls short in comprehensively explaining judicial decision-making. Judges do have a personal background that is unlikely to disappear when ruling on a case. However, whereas the legal model neglects a judge’s individual perspective and the ambiguity of language, the attitudinal model overly stresses the personal factor. By focusing solely on the judges’ personal preferences it leaves aside a wide array of potential further influences that may contribute to a decision. Therefore, it is criticized by other scholars as being too simplistic and unable to account for other factors such as the environment in which a judge operates, institutional constraints, or the impact of law (Pacelle, Curry, and Marshall 2011; Gillman and Clayton 1999; Baum 1997).

In addition, it is quite obvious that the attitudinal model has been designed for a special type of court, namely the US Supreme Court, and can therefore not serve as a generally valid explanation. For the attitudinal model highly relevant, it bases on the assumption that judges are unconstrained actors because they do not strive for further careers and are not accountable to any kind of electorate or other political or non-political players. However, in many judicial systems judges do not have lifetime tenure, for example in Australia, Canada, and Germany. Thus, they do have to consider potential effects for a post-court career. Also, the presumption that judges at the US Supreme Court have reached the peak of their career does not necessarily pertain to all judicial systems. As in countries with a constitutional court several high courts exist, it would be a questionable conjecture to define one court as most important. But even arguing that a constitutional court is the most prestigious one in the respective judiciary would not entail that serving at another high court means being on a lower career level. Both kinds of judges - those on high courts as well as constitutional court judges — are often equal in rank such as in Romania or Germany. In addition, there are judges who serve at a constitutional court ex officio, for example all former French presidents in case of the Conseil Constitutionnel. Moreover, there have been judges who came into an even higher office after their term at the court like Roman Herzog, becoming Federal President of Germany after serving as a judge at the Federal Constitutional Court. Therefore, one can hardly argue that judges at high courts are undoubtedly at the peak of their career. Furthermore, other institutional settings should be considered to influence the characteristics of judges such as the appointment processes or the degree of politicization (Smyth 2003). If they differ from those proposed in the attitudinal model, the explanations offered by this approach are unlikely to hold.

Moreover, besides separate opinions one can also observe unanimous rulings. If, however, the decision-making process were exclusively based on attitudes, this would be highly unlikely as unanimity would be extremely hard to achieve given the large variety of possible standpoints and backgrounds. All arguments mentioned above demonstrate that the attitudinal model contains valid points but cannot provide a comprehensive explanation for separate opinions and for judicial decision-making in general.

Having depicted the shortcomings of the legal and the attitudinal model it has to be addressed how sound strategic models can explain decision-making at courts including the existence of separate opinions. First, as according to strategic approaches a judge’s “success or failure depends on the preferences of other actors and the actions she expects them to take,” (Epstein and Knight 1998, 12) the model requires the actors to have a high degree of information on the standpoints and behaviors of the other actors involved. This is quite difficult to achieve. The composition of the court changes. Whereas the effect may differ between courts with life tenure and those with fixed terms, gaining a large amount of knowledge on how the interaction between the judges will happen is in both cases nearly impossible. The fluctuation at the court diminishes the chances to gain information. A new member will change the dynamics within the panel, which hampers anticipating the individual judges’ behavior. Similarly, changing majorities due to elections or even changes in political perceptions towards specific topics make it difficult for a court to precisely estimate a political actor’s position. Nevertheless, leaving other actors completely aside when examining a court’s behavior would fall short, too, since the court is not an insulated institution in the political system and in society.

Besides those weaknesses it should be noted that a court’s interaction with other players such as the legislature is only of minor importance for understanding the emergence of separate opinions, which are the focus of this work. External actors are only affected by the binding part of a ruling, meaning the result of the majority opinion. If, for example, the court declares a law void, the legislature has to react by passing a new law (or refrain intentionally from it). What matters in this scenario is the request of the majority opinion as it wants the legislator to implement the respective decision in the desired manner. Separate opinions, by contrast, do not have an immediate impact since they cannot influence directly other actors’ behavior. Deciding whether to write a separate opinion or not in the light of the question how other actors will react is therefore not plausible. Moreover, the model does not include further restrictions the judges face: Neither does it address the fact that judges have a limited amount of time, which can influence their inclination to writing separate opinions nor does it account for the confinements the law poses.