The Supreme Court Historical Society

Comparative Law: The Federal Constitutional Court of Germany and the Supreme Court of the United States

by Karl-Heinz Millgramm

Some differences between the Supreme Court of the United States and the Federal Constitutional Court of the Federal Republic of Germany (FCC) are quite obvious: While the Supreme Court acquired a large marble building that looks like a greek temple for its work, the residence of the Judges of the FCC is rather modest, looking in many ways like an office building outside, with much similarity to the interior of an ocean steamer inside. On the other hand the robes the judges wear in Court sessions look very much like the scarlet robes of high officials of the Vatican while the Justices of the Supreme Court prefer--compared with this--a modest black robe.

Each Court was instituted as highest constitutional guardian, but for a different society with a different culture and history. In spite of these differences which can only be mentioned but not examined broadly, both Courts may be subject to comparative examination.

While the Supreme Court acts as one deciding body, consisting of nine justices, the FCC is organized as a Twin-Court, consisting of two independent deciding bodies, called "Senates," of eight Judges each. Only in rare instances of high constitutional importance the FCC acts en banc as a plenary body with all judges of the Court.

Although the election and nomination-process for the members of the courts is not the same, political implications are here and there obvious. While the appointment of a Supreme Court justice is a problem to be solved by the Senate and the President of the United States, this process is in Germany rather difficult. Some of the judges are elected by the Parliament, the other by the Council of the States. Three judges of each Senate have lobe selected from the judges of all Federal Superior Courts. All candidates must be at least 40 years of age. They are elected for a term of 12 years, and reelection is not possible. At the age of 65 a judge retires, regardless of whether his 12-year-term is completed at this time or not. By the way, some critics feared that allowing reelection and the publishing of separate opinions would bear the danger that a judge would not write in dissent but for his reelection. This points out the problem of influence of political parties. Their influence is quite obvious in the appointment process.

Once a judge is appointed there might be a chance that he will be influenced by basic political ideas of his party, but there has never been a case of a judge who did decide according to a party order or even a "desire." Nevertheless in order to provide for sufficient majorities the parties deal about the positions, thus sometimes one party may nominate a person, while next time it will be the other party's turn, etc.

However, both courts are courts of law. Therefore, every member of these courts must always be aware of the duties of his court and must never forget them, even if his election or confirmation-process had been full of political implications. It makes no difference at all if his nomination was just a sort of gift of his political party. Both courts are--the Supreme Court at least first of all -constitutional courts. Within their power they apply constitutional law to legal issues and construe this law, binding other courts. Although there are political ties in many cases argued before and decided by these courts, this may not lead to the misconception, both courts were just political institutions.

Everyone has--of course within the frame of law--the right to appeal to both courts. Certiorari cases and--on the other hand--constitutional complaints are the kinds of cases which represent the main burden of the work of both courts. This burden is very high and demonstrated by a permanent increase of filed petitions or complaints. There are critics--even among members of both courts--who demand measures in order to lessen this increase. But, this pressure should, perhaps, be reviewed with a skeptical eye. As Justice Brennan[1] once stated, to get along with 'such an increase is first of all a question of doing routine work quickly and not a question of doing, in all cases, highly qualified research work. No wonder that most decisions in the first screening stage of the process are rendered unanimously. Justice Douglas[2] once added that he mistrusted a demand which in effect wants to keep cases away from the Supreme Court. There are--especially from the point of view of a German--some positive aspects of the increasing work load which are real and should not be forgotten:

First of all the increase proves that more and more people accept both courts as necessary constitutional institutions whose doors are--in the frame of law!--open to everyone if he or she cannot obtain relief otherwise. This was the intention of Brown, Gideon and others who brought their cases to the Supreme Court, in hopes of establishing a landmark precedent. There are already instances like these in the short history of the FCC: Just recently a law student and hundreds of other petitioners successfully attacked the government 's plan of a nationwide census (Volkszählung). If one had to give a report on constitutional justice in schools or other assemblies of non-lawyers, one would--probably not without the desire to provoke astonishment--mention similar cases. The popular book Equal Justice Under Law, edited by a board of the Supreme Court Historical Society, tells the history of victories of small people over branches of government or other big forces in society. These people consider both courts as supreme institutions which have power over any force which influences social life and their individual rights. Screening case by case means being in touch with various problems of society, thus providing a kind of control which should be considered as an imminent factor of constitutional justice. However, in order to get along with the problems caused by the heavy work load, both courts have established-the Supreme Court by court rules, the FCC by an Act of Parliament--a screening-process which takes place before the full conference reviews the cases.
While the justices of the Supreme Court are free to select any case they wish for plenary consideration, the judges of the FCC do not enjoy the same latitude. They have to grant a petitioner the requested relief if there is anticipated a decision which may solve serious constitutional problems or if the petitioner otherwise had to suffer serious damages. But the selection process of both courts, too, differs from each other: While every justice takes part in this process, this is not the case in the FCC. There each Senate forms several groups consisting of three judges each. Any case this so-called "Three-Judges-Commission" does not want to take, is barred from plenary consideration; however, the decision of this commission must be unanimous. On the other hand, these commissions do not decide the question, whether a case will be decided on its merits. This decision is up to the Senate. Thus the commissions filter out nearly 97 percent of all filed petitions. The Supreme Court rejects "only" 70 percent in the screening phase in which all justices may take part. The decision of the Supreme Court to reject a case, that is to say, to deny a petition, is simply made by not transferring a case from the conference agenda which includes all petitions, to the 'discuss list" which consists of all cases at least one justice wants to discuss in conference. Even if cases have reached that level in both courts, the conference or the Senate still has the power to reject it. While--by tradition--a case needs four votes to receive plenary consideration on its merits by the Supreme Court, a case in the FCC needs at this stage a quorum of two judges only.

Before looking at the process of decision making in both courts, one should first of all accept that neither Supreme Court nor FCC functions as a kind of permanent constitutional convention. The phrase "constitutional convention," once uttered by Justice Jackson,[3] prior to his appointment, was not meant in order to take pride in the existence of such a court. It is understood best as a reminder of the simple fact that even the highest constitutional court is first of all a court of law. That means it is subject to the same basic requirements which are incumbent upon every court. The main duties of a court are to apply law to cases, solve "actual controversies" and to render decisions which are lawful and just.
The process of decision making, that is to say of deciding a case on the merits, is in both courts complicated and time-consuming. While every justice prepares every case which made the "discuss list" for the conference, the situation in the FCC differs here, too. According to a plan one judge will prepare the case alone. He functions in conference as a reporter. He is the one who prepares later on the draft of the judgment which is in the FCC always a per curiam opinion.

However, each judge receives copies of the briefs submitted--not printed as it is the case in the Supreme Court--and may, if he wishes to do so, prepare himself for discussion in conference like he were the reporter of that case. By the way: writing in dissent does not free a reporter from his duty to prepare the draft of the judgment. It happens from time to time that a judge fulfills both duties. Since the justices of the Supreme Court write "opinions," often written like a personal letter, it is a rare event--Justice Douglas once told of one instance--that a justice writes both the opinion of the Court and a separate opinion. However, in the sense Justice Brennan and other justices understand this term, it happens from time to time, too.

The members of both courts have a certain number of law clerks available. The kind of work they have to do depends on the justice or the judge. Help and--in many ways--assistance is thus available, since all law clerks have been selected from a group of highly qualified lawyers. This offers advantage and danger as well. The danger lies in an attack against the purpose of a multi-person court. The "lawgiver" wanted for several reasons, not one single justice or judge but that a group of them should decide cases filed with the court. That means that he thought of all advantages a group can offer: close relationship between the members, group-goals, cooperation etc. But, if a court member has his or her own group of assisting persons available it should not be overlooked that this means forming little groups within the superior group called court. Thus the effect is that a justice or judge may have closer relationship to this little group of assistants and may even feel obliged to them because of good work they may have done in a certain case. Thus it is throughout possible that he or she could be reluctant in conference if the majority of the court is tending to a point of view which is in opposition to this court member's and his or her assistant's view. No justice or judge will admit this, and of course there will be no reason to reject this denial as not honest, since he or she feels obligations and duties as a court member. But a discussion of a group of justices or judges more or less well prepared by their law clerks and may be even convinced by their suggestion and opinions is not the same as a conference of court members who did their homework alone. These are speculations, of course. They are mentioned, however, since they include a warning: if such dangers are imaginable, why should they not become real? Free discussions, willingness to admit mistakes, in brevity: all aspects Chief Justice Earl Warren mentioned in his report on the deliberation process in Brown,[4]are things a third person expects, who is--because of the secrecy of the deliberation--only able to speculate. Is the inflation of separate opinions in the Supreme Court a result of lack of willingness for free discussion? Only the justices can answer that question. Nevertheless this question should be asked. Only a very young person without any experience--such persons are law clerks--can be proud of such effective things like a "stenographic pool" which tears off the individualities of a single case and reduces it to an amount of "relevant" facts, issues and presses these remains in the narrow frame of precedents. Thus a person who is familiar with the judiciary for a long time may--on the other hand--find some sympathy with justices like Justice Brennan who, according to the sources,[5] reviews every case himself, leaving only subsidiary work for his law clerks. Any law clerk should be aware that "special trust and confidence" is reposed in the "wisdom, uprightness, and learning" of the justices. To help and assist a justice wherever this is necessary is a just desire for a law clerk who always knows that his or her justice bears the final responsibility for his opinions and actions.

The situation in the FCC is somewhat different, since this court recruits its law clerks from judges of lower courts, state attorneys, officer-lawyers of authorities etc. who mostly look back at a ten-year-legal-education and some experience in office. Sometimes they are selected from research assistants of the law schools. However the same thoughts which are described above are applicable to the FCC.

Beside law clerks there are other dangers which may disturb the deliberation process, namely lack of cooperation and of willingness to discuss any problem without regard to one's own reputation. Even the simple fact of a group of highly qualified lawyers who used to be leading officials, professors, powerful partners in law firms etc. can be a hindrance, since none of the court members has ever had the chance to select the persons who should become his colleagues. Last but not least the wide language of constitutional terms which gives room for construction and many opinions does not make deliberation easier.

In order to provide for an effective discussion among the court members the deliberation process must be entirely secret. Therefore the measures Chief Justice Warren E. Burger undertook[6] when this secrecy had been breached once, were proper and just. Whoever dares to disturb this secrecy has to expect sharp reactions and there is no right, not even such as the right of a free press, that could be superior to the imminent necessity of any multiperson-court, namely the demand of an undisturbed and thus free and open-hearted deliberation. It is therefore self-evident that the FCC protects the secrecy of its deliberations the same way the Supreme Court does. However, the FCC has--from time to time--to suffer from "anticipated" announcement of judgments of the Court by the media. It always puts the Court in a bad light if the newsman on TV tells the people in the evening news what the Court will announce in the morning, regardless of whether this "prophecy" turns out right or wrong. Both courts decide cases on the merits either after or without oral argument. German observers would probably be astonished about the formalities of the oral argument in the Supreme Court. The loud "oyez" -cry of a Marshal and things like a gavel are not to be found in the FCC or any other German Court. Instead of this a court officer will announce the coming of the judges with the words: "The Federal Constitutional Court!" This might probably already be an adoption from the Supreme Court, like may things which--in the term of the Yearbook of the Supreme Court Historical Society--belong in this book's chapter "de minimis." Fifteen years ago there was a movement in Germany to abandon symbols like robes, formalities, etc. The motto was: "Under the robes lies the dust of ages!" The presumption was that symbols which have no meaning anymore should not further exist simply because they were always there. On the other hand--to speak with Justice Frankfurter--the significance of a symbol lies in what it represents;[7] symbols are pointing at ideals, maybe never reached by anyone. But symbols make it easier to find out whether the person, e.g. the judge, using these symbols is on his way toward the ideal which is illustrated by them. Otherwise the symbols would make it clear that the judge's behavior in inconsistent. We here in Germany had a time with bad memories: In the Nazi era, Hitler used a board which was called Volksgerichtshof, in English: "People's Court" to label the murder of people as, a lawful measure, ordered by a court. The significance of the symbols of the judiciary Hitler used were that strong, that our highest appellate court, the Bundesgerichtshof, still considers the members of this board as "judges" and their institution as "court." However, there are some signals that this court is going to change its mind. Thus, symbols which were so misused in many ways in the Nazi period, have a weak place in Germany. This can be an explanation e.g. for an American lawyer who visits German court sessions and wonders why there are not as many symbols and ceremonies like in American courts.

While the procedure in oral arguments of the Supreme Court is strongly governed by the court rules, the Judges of the FCC decide in each case how oral argument is organized. For example, they will decide whether a time limit should be fixed for the attorney of each party or the amici curiae, experts etc. The most significant difference between both courts is, however, that the number of oral arguments is very high in the Supreme Court while in the FCC oral argument is a rare event which takes place about ten times a year.

One chapter covers stare decisis. This principle has--as Justice Douglas stated once--little place in constitutional law,[8] however it is even here of some importance. It allows the disposition of routine cases to be quick and easy. On the other hand, permanent ambivalence of constitutional positions and opinions, also changes in society -constitutional law is a reflection of this--protects constitutional courts from--as Justice 0. W. Holmes said[9]--"blind imitation" of what was said long ago. As far as opinions of both courts have a guardian function for other courts and lawyers, stare decisis is still a factor which should not be underestimated. However these goals are not reached if the court members try to reach unanimity for the price of rendering an ambiguous decision or interpretations while important questions are excluded and postponed for later cases in order to save unanimity. Brown v. Board of Education[10] bears--as D. Hutchinson[11] described -a lesson.

It is rather fitting that, in order to provide a clear opinion of the court, court members who cannot--as Justice Blackmun said[12]--after serious--self-examination either concur in the result or in the reasoning, render a separate opinion, thus allowing the majority to render a stringent reasoned decision which leaves no doubt about its meanings.

The tradition of publishing separate opinions is rather of American than of English origin. It is a creation of the Supreme Court under Chief Justice John Marshall (1801-1835). However, rendering separate opinions secretly has always been familiar to German judges. The right to publish them was, since 1945, a privilege of judges of some state constitutional courts. Since 1970 the judges of the FCC have had this right, too. Political reasons and aspects were the main reasons for the invention of this right--either declared openly or masked by the allegation that there were serious procedural reasons. Thus, these procedural reasons which had been rejected so many times before, suddenly became very important.

Politicians wanted to "enforce the personality of the judges of all multiperson-courts" thus to provide a more constitutional understanding" of the position of a judge. The pressure-groups had success. The 1970 Parliament gave our FCC-judges the right to publish their separate opinions. The year 1971 brought 20 separate opinions. However, this number decreased in the following years to an average of seven per year. Although the number of separate opinions in the Supreme Court is extremely high, it should not be overlooked that most cases in the screening phase are decided unanimously.

Another questions, which functions the opinion of the court and the separate opinion have. While the opinion of the court or the reasoning of the decision has to show the facts of the case, the legal basis and aspects which led the court to the decision, the dissenter--on the other hand--has to show that he has taken part in the decision finding-process as a colleague to all of the court members. He shall also state the reasons which made his separate opinion necessary.
The practice of the FCC of reporting all legal points of view of both groups of judges in cases of an equally divided Court in the reasoning of the decision, is not free of doubt, since a provision of the Court Act provides that in such cases the group of Court members have to form the minority who would decide in favor of the petitioner. This rule should be respected.

The right to write in dissent does not suspend the dissenter from his duties as a justice or judge. He has to take part in the deliberation process, and it is self-evident that he has to discuss all legal aspects which he has in mind and considers important. Thus, separate opinions should be a result of the deliberation process. Therefore it would be a misunderstanding of the duties of the dissenter if he were obliged to write his dissent like he were the only justice or judge who had to decide the case. The time of seriatim announced opinions has gone since John Marshall's time, and there should be--in spite of the inflation of separate opinions in the Supreme Court--no revival. Separate opinions which are not just political statements but reach a philosophical level may support discussions of legal aspects and problems, like this is the case with any other legal publication of a higher standard. However, the dissenter should have in mind the parties of the case in which he rendered his opinion. There is no advantage for them in prophecies which are addressed to the future. It is rather important to promote legal progress here and now. It is hard to believe that a Court which is well-known because of an increase in separate opinions, is reaching for the ideals of a multiperson-court. Separate opinions rather give the impression that enmity is a permanent guest in this court. The judges of the FCC therefore consider the opportunity of writing in dissent as a right which is more valuable if it is seldom used. From 1971 to 1982 (January) there were only 93 separate opinions. But this is not the whole truth. Statistics show that four judges of the Second Senate of the FCC wrote nearly half of all counted separate opinions. Statistics also show that in this time the First Senate had 19 separate opinions only, whereas the Second Senate had the remaining 74. One cannot say that there were certain groups of dissenters, only in some cases several judges wrote together in dissent.

A lot of concurring opinions can at least be suspected as being superfluous. This is the case if a concurring opinion just repeats what the majority already said in the opinion of the court. Therefore all concurring opinions which consist of nothing but such statements which do not show any significant difference to the court opinion or are nothing but plain commentaries and dictas rejected by the majority, which should be avoided.

It is not the function of a separate opinion to enforce the personality, especially the prestige of its author. Such thoughts are irrelevant. After all, relatively few people actually read court and separate opinions. Is it worth writing a dissenting opinion just for the sake of the newsperson on TV saying in the evening news: "Over the dissents of Justice/Judge NN the Supreme Court/FCC ruled. . . . Up to vol. 412 U.S. the Supreme Court rendered 1,428 opinions while there were 5,392 dissents. Even if one agrees that there were a group of justices who later became great or even prophetic dissenters, the chance to gain such a label is minimal. E.g. the Brown-decision cannot be labeled just as a fulfilling prophecy of the late Justice Harlan.[13] However, his ideas were valuable reminders and it took great changes in the American society until the situation Harlan wished became truth at last. The chance to become a philosophic dissenter like 0. W. Holmes, Jr., who relatively wrote only few dissents, is small. Every dissenting member of the court should keep in mind that a separate opinion first of all bears a confession; namely, that he was overruled by his colleagues. Since some use for legal science and research cannot be denied, the publication of separate opinions is justified. It is thoroughly possible that separate opinions may influence the deliberation process. One may think e.g. that the court members take more effort in this process if one member declares his intention to write separately. However, such an announcement could also be fatal: The announcement of the dissenters in the Dred Scott--case to discuss federal issues instead of leaving the case to the involved states and their law, as precedents said, had the result, that the Court discussed federal issues, however, the decision was, as we know, fateful for the slaves and their demand to become free citizens. On the other hand, the chance of significant influence of an announcement to write in dissent is small if dissenting opinions are something that happens very often, day by day.

There is a relation between majority and minority opinions. A separate opinion may lead to a better understanding of the views of the majority. But it may also disclose, as Roscoe Pound"[14] showed, personal animosities among the court members. The examples he mentioned should be a warning. Separate opinions may also lead to a misunderstanding of the opinion of the court. All members of the courts should therefore take efforts which exclude any misinterpretation. This instance also shows that even a dissenter has to take part in the whole deliberation process until it is completed. If, however, a dissenter refuses to take part in these efforts, it is rather the duty of the other court members to take care for clarity in their opinion. It is--on the other hand--also self-evident that an opinion is neither the place to shout at each other, nor to report on statements given in the privacy and secrecy of the conference. Throwing "poisoned footnotes" at each other should be avoided. Publicity is also a motive which should not be a reason for opinion writing at all. Finally a separate opinion is not the place to discuss obiter dicta--aspects since the dissenter--like all the other court members--is obligated to discuss such problems only which are relevant to the decision.

A highly qualified dissent will be regarded in later cases and--however there is a small chance--the Court may later on change its views according to the separate opinion in an earlier case.

A last problem shall be mentioned, namely whether all judges of lower German multiperson courts should have the right to publish separate opinions. Since the exchange of legal thoughts functions very well--some say: too well--in Germany there is--though demanded by a minority--no need to exceed this right to other Courts as the FCC and state constitutional courts.

This essay could not include a deeper insight in the German experience with the separate opinion. The former president of the FCC, Ernst Benda, stated once: "(Separate opinions delivered in cases of great social and political conflict) reflect a modern democratic society split between various ideologies and ideas. Generally one can say that --after some initial over-stressing--the dissenting or concurring opinion in German constitutional jurisprudence has not been misused and has fulfilled its function."[15]

There might be some doubts whether there never was a case of misuse of the right to publish separate opinions. Besides that there is nothing to add to Judge Benda's statement.

Acknowledgments

When I started my dissertation project in 1979, from which this essay has been taken.[16] I first of all visited the Supreme Court in Washington, D.C. The first officer I contacted there was Assistant Clerk Edward C. Schade from whom I received valuable information during this visit and later on in the following years. Such help I also obtained from the Supreme Court Library. With kind permission of the Court Administration I was allowed to work in this library. When the main part of this dissertation had been written, Christopher W Vasil, Deputy Clerk of the Supreme Court, was so kind to discuss the Court procedure with me, especially the way the Supreme Court handles Cert-Petitions. I also received much help through my membership in the Supreme Court Historical Society.
Some American friends of mine, especially Noel Higginson, B .A., of Norristown, PA, contributed to this book by proofreading the English Summary. To mention all the people in the U.S.A. who helped me to do this project, would mean to write a long list, but it would also prove an example of good relationship between Americans and Germans, for
which I am very grateful.

Endnotes

1 Brennan, in Grossman/Wells, p. 218 f.

2 Douglas, Court Years, p. 391.

3 Warren, p. 2, 285.

4 Warren, p. 2, 285.

5 Stern/Gressman, p. 8; Brennan, in Grossman/Wells, p. 218.F

6 Grossman/Wells, p. 251.

7 West Virginia State Bd of Educ. v. Barnette, 319 U.S. 624, 662 (1943)--Diss. Opinion.

8 Douglas, We the Judges, p. 429.

9 Holmes, in Lefflar, p. 26.

10 Polk County v. Dodson, 454 U.S. 312, 32 (1981).

11 Plessy v. Ferguson, 163 U.S. 537 (1896).

12 Pound p. 794.

13 Brenda, Constitutional Jurisdiction in Western Germany--Some Recent Developments, speech delivered in Washington, D.C., 1980 (ABA-meeting), quoted from p. 2 of the typewritten manuscript, Library of the FCC, Karlsruhe, Fed. Rep. of Germany. More detailed information on the FCC is available by a publication, issued by the INTER NATONES Office, POB, 5300 Bonn 2, West-Germany, the title is "Law on the Federal Constitutional Court (Documents on Politics and Society in the Federal Republic of Germany," Editor: Dr. Gotthard Wöhrmann, Stock-No. 720 Q 5516.

14 This is also a summary of the dissertation Separate Opinions of Justices and Judges of the Supreme Court of the United States and the Federal Constitutional Court of Germany. Berlin: 1985. Duneker & Humbolt.