Establishing Judicial Independence in West Germany: The Impact of Opinion Leadership and the Separation of Powers

Comparativists have recently taken an increasing interest in politics surrounding constitutional courts. This literature has focused mainly on impact of constitutional review on policy output.' A theoretically prior but intimately connected issue is ability of courts to establish and protect their institutional integrity and to ensure compliance with their decisions. This issue is theoretically prior because without such authority courts will have little effect on policy. It is interesting because authority is problematic. Courts occupy a weak formal position. They possess no direct enforcement mechanisms and few powers to guard their independence.2 At same time, courts with power of constitutional review can impose an unpleasant constraint on government power, and historically executives have challenged them on numerous occasions. Franklin D. Roosevelt's court-packing plan, curtailment of Spanish constitutional court's powers in 1985, and abolition of constitutional courts of Cyprus in 1964 and of Austria in 1932 provide clear examples. This weak formal position thus raises a puzzle. How can constitutional courts resist executive challenges to their power and independence, or why do they fail to do so? Scholars concerned primarily with U.S. Supreme Court have highlighted for courts as one component of court authority.3 As Caldeira has put it, the lack of any formal connection to electorate and its rather demonstrable vulnerability before president and Congress mean that Supreme Court must depend to an extraordinary extent on confidence, or at least acquiescence, of public.4 In his work on Roosevelt's court-packing plan, Caldeira has made a strong case that justices are aware of importance of public support and that at least on occasion they act consciously to foster it. Implicit in such emphasis on public support, of course, is notion that directly elected officials are likely to refrain from attacking an institution whose widespread support holds out threat of electoral punishment.5 A second argument about authority of high courts departs from an insight of James Madison. Madison argued that successful constitutional design depends on providing various branches with interest and means to defend each other against encroachments.6 The political system must be set up in such a way that interplay of various institutions serves to hold them all in check; thus, strategic interactions of political players are a key to understanding how courts can (or fail to)