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Constitutional Courts in Comparison: U.S. Supreme Court and German Federal Constitutional Court

The countries of the United States of America and the Federal Republic of Germany are two of the greatest and most highly regarded countries in the world. Both countries have similar structures of government, Germany’s being established following World War Two. One of the important institutions of these two similar governments is their constitutional courts. “Generally, constitutional litigation has two functions: to protect fundamental rights of citizens and to supervise legislative activities of the government.”[1] The US Supreme Court and the German Federal Constitutional Court each play an important role in their countries’ respective governmental systems and are similar in many ways. There are also some differences that distinguish the roles these courts play in their countries.

Both of these courts played an important role in the forming of their respective countries, especially regarding the issue of federalism. The German Federal Constitutional Court (GFCC) played a role in the formation of some of the states within the German republic following its formation after World War Two.[2] In comparison, the US Supreme Court also played an important role during the foundational years of the United States as it made decisions regarding both interstate commerce and the government’s involvement in the national economy.[3]

There are some differences between the courts that can be attributed simply to their history and the circumstances behind their formation. For instance, the US Supreme Court currently consists of nine justices whereas the GFCC currently consists of sixteen. America is a larger nation but has fewer judges. The number of judges for both countries’ courts has changed several times over the course of the court’s history. There is also a difference between the amounts of time that a judge can serve on the court. In America, each judge serves for life or until they choose to retire. In Germany, however, each judge is chosen to serve for a maximum period of twelve years, with no chance of reelection. These differences have no large impact on the functioning and practical application of the courts decisions, but are merely a difference in operation between the two countries.

One of the main differences between these two courts is the scope of the cases in which they have the ability to make decisions. There are only two main ways in which to bring a case before the US Supreme Court, either by “requests for original jurisdiction or by three appellate routes — appeals, certification, and petitions for writ of certiorari.”[4] The constitution itself grants the Supreme Court original jurisdiction of all cases involving disputes between the states themselves. “Appellate routes” means that the case is given for consideration to the Supreme Court because a decision of a lower court is being appealed. The Supreme Court is the highest court in the chain of federal courts. In contrast to the US court’s ability to hear appellate cases, the GFCC does not hear appeal cases and is only able to hear cases regarding the constitutional law itself. This includes ”adjudication of disputes between state and federal political institutions, protection of individual civil rights as guaranteed in the constitution, and responsibility for protecting the constitutional and democratic order against groups and individuals seeking to overthrow it.”[5] The main reason for its negligence of appeals cases is the fact that it is not the highest court in the land as is the US Supreme Court. It is a separate entity from the federal court system and it is only responsible for cases involving constitutional law. It cannot try cases that were previously tried in a federal court.

The practical application of this difference is seen in the influence that the justices of the courts have on policy and public opinion. Because the Supreme Court justices have a wider range of cases to choose from as a result of the appellate cases brought before them, they can choose to hear cases that are influential to a certain policies or opinions that they wish to have an effect on. Also because the decisions of the Supreme Court are treated with such high regard in the US, the court is almost a “final interpreter” of the Constitution itself. This gives the justices an even greater range of influence on government policy, both in the present and the future.[6] In contrast, the GFCC mainly functions as a tool to weed out legislation that would have a negative effect on the country, while leaving positive legislation alone. The GFCC judges do not have as much influence over government policy as the US Supreme Court justices do. This shows one of the main differences between the two courts.

Another one of the similarities between the two courts is the fact that they both have their judges nominated through political means. In the US Supreme Court, if a seat on the bench becomes open the President has the right to choose a person to fill the void. His nomination is then dependent on a vote by the US Senate. A practical application of this process is that the President can choose a justice that will help push his policies in the decisions made while that judge remains a member of the Supreme Court. Similarly, judges in the GFCC are nominated by the upper and lower houses of the representative bodies of government. Although the selection process is much more complex than that of the US court, it ultimately has the same effect in that the members of the houses that choose the judges choose based upon which judge will most likely further their agenda.[7] Both courts are similar in their methods and reasons for choosing certain judges.

It is evident through a study of these two constitutional court systems that there are some similarities as well as some differences between the two. These similarities and differences have a great impact on the function of and practical application of the court’s decisions. Both courts have their strong and weak points and have so far proven to be efficient means of constitutional litigation in their respective countries.

[1] Ralf Rogowski and Thomas Gawron, Constitutional Courts in Comparison: The US Supreme Court and the German Federal Constitutional Court (New York, Berghahn Books, 2002), 1

[2] Ralf Rogowski and Thomas Gawron, Constitutional Courts in Comparison: The US Supreme Court and the German Federal Constitutional Court (New York, Berghahn Books, 2002), 4

[3] Ralph A. Rossum, Federalism, The Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (Lanham, MD, Lexington Books, 2001), 233

[4] Lee Epstein and Thomas G. Walker, Constitutional Law for a Changing America: Rights, Liberties, and Justice (Washington DC, Congressional Quarterly, 1998), 13

[5] David P. Conradt, The German Polity (New York, Addison-Wesley Longman, 2001), 238

[6] James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (Indianapolis, Liberty Fund, 2000), 488

[7] David P. Conradt, The German Polity (New York, Addison-Wesley Longman, 2001), 240

U.S. Supreme Court Building

U.S. Supreme Court Building

German Constitutional Court Building

German Constitutional Court Building


GwenNovember on March 21, 2012:

I don't believe you are wrong there. Thinking through civil rights cases. The Supreme Court did exactly that. Produced the final words on the intent and meaning of the Constitution. And things like Prohibition becoming amendments to the Constitution. There I am not sure, if that was the Supreme Court.

William R Bowen Jr from New Bern, NC on April 18, 2011:

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Great comparison, especially your discussion of the implications of their differences.

bewhuebner (author) on March 10, 2011:

I agree! They can be tough to grasp at times but they intrigue me nonetheless. Thanks for reading once again and hope that it was worthwhile for you. from upstate, NY on March 10, 2011:

bewhuebner-- No, Your article is terrific, I'm just trying to sort through some of these issues myself, they can be quite confusing.

bewhuebner (author) on March 08, 2011:

Thanks for pointing out your thoughts wba108! Would you recommend that I rewrite that portion of the article? I did not mean for it to say that the S.C. was meant to be a final interpreter, but only that it is treated that way by many people. I don't believe that it should be either, so it's nice to know that someone else agrees! :) from upstate, NY on March 08, 2011:

Maybe I misunderstood this part of your article :"Also because the decisions of the Supreme Court are treated with such high regard in the US, the court is almost a “final interpreter” of the Constitution itself. This gives the justices an even greater range of influence on government policy, both in the present and the future".

What my point was, was that the Supreme Court was not supposed to be almost a “final interpreter” of the Constitution ,as you wrote.

bewhuebner (author) on March 07, 2011:

I don't believe I said that the Supreme Court was designed to be the Constitution's "Final Arbiter," but thank you nonetheless for reading and for taking the time to comment. I also appreciate the information that you left in your comment! I don't believe that the S.C. has the final staying power and I'm sorry if my article gave you that impression. from upstate, NY on March 07, 2011:

Very well written and informative, you presented your ideas with clarity and concision. I would dispute that the US Supreme Court was designed to be the final Arbitrator of the Constitution. This notion that the Supreme Court has the final say on Constitutional questions is not found in the Constitutions or in the thoughts of the founders. Not a word of this is found in the federalist papers. In fact Congress is given the power to limit the "Supreme Courts jurisdiction under the Constitution’s “exceptions clause” in Article III, Section 2".(

"Lincoln noted, if the Supreme Court’s decisions irrevocably resolve issues, the people will have ceased to be their own rulers and resigned their government into the hands of judges".(Washington times 2003)

The scope of the power of judicial review is often misunderstood, as the Judiciary was never intended to have the power to thwart the acts of Congress generally speaking. The judiciary was only to arbitrate on Constitutional questions that came before them on a case by case basis. The courts were only supposed to overturn acts of legislature that were clear violations of the Constitution.

Jefferson did not believe, however, that all the branches of government together are the final arbiters of constitutionality. Not even the Federal and state governments, to whom he would certainly provide some place, are the ultimate arbiters. Government is too dangerous, too bent on aggrandizing its own powers, to leave to it or them the final decision. “I know of no safe depository of the ultimate powers of the society but the people themselves,” he said.[21] In the final analysis, he thought, that was where the power of interpreting the Constitution resides. The people may turn out members of Congress who displease them on constitutional issues. They can refuse the re-election of a President. If all else fails, or if the branches of government cannot agree, the Constitution can be amended by the consensual process prescribed.(

bewhuebner (author) on February 06, 2011:

Thanks for the tip! I found some helpful information there and am grateful for your willingness to lend a hand.

WildIris on February 05, 2011:

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