The Electoral Connection: How the Pivotal Judge Affects Oppositional Success at European Constitutional Courts

Abstract

Constitutional courts are often considered to be ‘veto players’ or ‘third chambers of parliament’. However, no attention has been paid to the composition of European constitutional courts and how they make decisions. Do European judges exhibit political preferences as their US counterparts do? If so, it is important to know who selects the judges as the selection determines the outcome. This article analyses the composition of the German Bundesverfassungsgericht and the French Conseil constitutionnel. It tests the correlation between the party affiliation of the pivotal judge and oppositional success empirically for all abstract reviews filed between 1974 and 2002. In both countries the likelihood of an oppositional victory or defeat varies with the ideological position of the pivotal judge. This leads to the conclusion that European judges decide on the basis of their political preferences like their US counterparts.

Acknowledgements

A preliminary version of this paper was presented at the Annual Law and Society Association Conference 2006 in Baltimore. I would also like to thank Silke Hans, Herbert Döring, André Kaiser, Thomas Bräuninger, Steffen Ganghof, Christian Stecker, Sususmu Shikano, Thomas Plümper, Ulrich Sieberer, Diana Panke and two anonymous referees for comments on this and earlier versions of the article.

Notes

1. Indeed, Giscard d'Estaing changed his mind after his defeat in regional elections in spring 2004 and the end of his presidency of the European Convention (Le Monde, 30 April 2004 (so ists im Litvz); 3 April 2004).

2. This is certainly true for the French case of nine judges. Strictly speaking the median in the German case is between judge 4 and 5, because there are eight judges in a Senate. The situation here is more complex but will be explained below. The basic assumption of this model is that the median judge is the pivotal judge determining the result. This assumption can be criticised for several reasons:

a.	As we know from the US Supreme Court deliberation of cases may lead to a change of position of judges (Baum 1992). We can therefore deduce that the assumption of exogenous preferences might be problematic.
b.	Both courts appoint rapporteurs to write opinions on which the whole court takes a vote. These rapporteurs have obviously an agenda-setting advantage not taken into account here.
c.	The size of the majority in the court is important. The bigger its size, the lower the likelihood of the median judge to defect, especially when a second possible dimension like federalism in the German case might play a role.

3. This is not the case when one of the former Presidents of France attends the sessions of the Conseil. If there is an equal number of judges and the result is five judges against and five judges in favour of the oppositional proposal, the President of the Conseil who is nominated by the French President has the deciding vote (Article 56 of the French Constitution).

4. The dichotomous measure is the strictest test. It also gives an indication what the results of the static expert scales (Castles and Mair 1984; Laver and Hunt 1992; Benoit and Laver 2006) would be: as long as the ordinal ranking of parties on a left–right scale does not change and government formation is done along the left–right scale there will be no difference in the results as the value ‘opposition’ or ‘government’ are just replaced by constants. This is most obvious when one compares the level of significance and explained variance of the dichotomous measure and Laver/Hunt: they are identical, just the size of the coefficient differs.

5. The German court offers the opportunity to initiate a posteriori abstract review to the opposition. This means that one-third of the Parliament, the federal government or the state governments can file a suit after a law has been signed by the President and published in the Bundesgesetzblatt. A short look at the German party system shows that abstract review is a prerogative of the two big parties, the CDU and SPD, the only parties able to achieve the one-third criterion or are able to control the state governments.

Equivalent to abstract review is the Bund-Länder-Streit, a vertical conflict of competence between the federal and the state governments (Stüwe 1997: 199). They serve especially to deal with the implementation of federal laws by the states (Benda 1986: 133). This is precisely the matter where regular conflicts arise between the federal government and state governments controlled by opposition parties.

The third kind of political conflicts arise at the Organstreit, dealing with horizontal competence conflicts. Unlike the vertical conflicts, they are usually not directed against a certain law and the government–opposition dichotomy does not work here. It is mainly used by parties not represented in parliament, like the right-wing Republikaner or the ecologist ÖDP, individual members of parliament who sue against the Bundestag or even their own parliamentary party. Parties may be involved, but parliamentary minorities are definitely excluded (Benda 1986: 130). For these reasons, Organstreite are not included in the sample.