CSLS Speaker Series – “Shaming the Court: The German Constitutional Court’s Turnaround NGEU Decision”

with Elena Kempf, Assistant Professor of History, Massachusetts Institute of Technology (Starting July 2024)

and Katerina Linos, Irving G. and Eleanor D. Tragen Professor of Law and Co-Faculty Director, Miller Institute for Global Challenges and the Law, Berkeley Law

Constitutional courts typically adhere to established precedent to maintain their authority and to avoid the appearance of political inference. However, in a remarkable shift in late 2022, Germany’s Constitutional Court, which had positioned itself for decades as the strongest check on European integration, greenlighted the European Union’s most ambitious program to date. This pivot is especially striking because just two years earlier, the Court had ruled a less extensive program unconstitutional. We argue that extraordinarily widespread and critical media scrutiny, occurring during a time of major crisis, contributed to the Court’s unexpected reversal. We support our argument through a comprehensive review of press coverage, coupled with a close reading of court opinions and a review of published interviews with key judges. Our findings challenge the traditional view of courts as counter-majoritarian institutions resistant to change. They imply that even the most established courts in liberal democracies are not impervious to shifts in elite and public opinion. They also suggest that courts may revise their precedents even when there is continuity in their composition and absent any overt measures to alter their structure or mandate, such as court-packing or term adjustments. These developments are not only significant for the trajectory of European integration, but also for broader debates on judicial responses to the rise of radical political parties.

Read the full paper here. 

If you require an accommodation for effective communication (ASL interpreting/CART captioning, alternative media formats, etc.) to fully participate in this event, please contact csls@law.berkeley.edu with as much advance notice as possible and at least 7-10 days in advance of the event.