“The Least Dangerous Branch”

The Politicization of the Judicial Branch in the U.S. and Germany
By Suzanne Foote

Suzanne Foote is a third year law student at Albany Law School, she holds a B.S. in History from The College at Brockport, SUNY, with a dual minor in Environmental Studies and Political Science. While attending Albany Law School she has interned with the Honorable Pater W. Hall of the United States Court of Appeals for the Second Circuit and the New York State Department of Agriculture and Markets Counsel’s Office and serves as the Executive Managing Editor for the Albany Law Review, Volume 82. Upon graduating in May, 2019, she will be serving as an Assistant Court Attorney for the New York State Supreme Court, Appellate Division, Third Department.
Suzanne’s paper was prepared for Professor Bonventre’s Supreme Court Seminar in the Fall of 2018.

Though they may have a judicial branch, constitutional democracies differ significantly in the ways these branches operate and the powers that may be exerted.  Judicial institutions, no matter the setup, are not free of political pressures.Yet, they may be less partisan than we see through the United States Supreme Court.

The judicial branch will undoubtedly always be political in nature because of the importance of the issues these courts decide—specifically, the individual rights of citizens under the governing constitutions. To examine the political pressures faced by judicial systems, this essay will examine the United States Supreme Court as compared to the German Bundesverfassungsgericht (“German Constitutional Court”).

The United States Supreme Court serves as a representative of a court vested with the right to review the actions of other branches of an otherwise co-equal government and to determine the constitutionality of their actions,. It also possesses other broad powers to decide non-Constitutional issues as the federal government’s “court of last resort.”

By contrast, while the German Constitutional Court represents a separate judicial body, which has been granted the power to decide upon constitutional issues, the court is limited to only these constitutional issues. By examining the similarities and differences of these two bodies, it can be concluded that despite the differences, both types of judiciaries are subject to political pressure and politicization due to role the judicial body plays in the federal government of each country.

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To read the paper, open HERE.