Constitutional litigation as dispute processing : comparing the U.S. supreme court and the German federal constitutional court

The paper compares the U.S. Supreme Court and the German Federal Constitutional Court (Bundesverfassungsgericht) by using a socio-legal perspective. In this view, the US Supreme Court is a constitutional court functionally comparable to the German constitutional court because more than half of its decisions focus on constitutional law issues. Like its German counterpart it engages in judicial review of legislation and is the institution to which citizens turn to claim their constitutional rights, and in particular those with little or no financial means to engage in litigation. The paper borrows insights from socio-legal studies for the comparison and proposes in particular to view constitutional litigation as dispute processing. It distinguishes three phases of dispute processing: mobilization of disputes, decision making in court, and implementation of judicial decisions. The paper investigates docket control exercised at the two courts, internal ways of case disposal with a particular focus on the interplay of judges and legal assistants, as well as conditions of implementation of decisions. Finally, it analyses functional aspects that include composition and impact of the courts on democracy and political culture.