Judicial policy‐making in Germany: The federal constitutional court

Abstract

The most powerful policy‐maker among German courts is the Constitutional Court. It is the thesis of this analysis that the danger of judicial review is a process of judicialisation of politics. More and more political questions are decided by the Constitutional Court and, thereby, political alternatives are reduced. Members of Parliament contribute to this development by carrying too far the consideration of legal arguments in legislation and judges by exceeding their competence in several cases. While it is an inadequate simplification of reality to claim that judicial review always serves the interests of the political elite, it is the growing influence of judicial review in policy‐making that sometimes prevents political reform.