Constitutional Courts in Comparison: The US Supreme Court and the German Federal Constitutional Court

Part I

Access and Case Selection

Chapter 1

Constitutional Litigation in the United States

Robert A. Kagan and Gregory Elinson

Since the establishment of constitutional courts at the national and supranational levels in Europe, European legal scholars have become more interested in studying constitutional courts, such as the German Federal Constitutional Court and the European Court of Justice, in comparative perspective. Their attention, understandably, has been directed to the United States, where courts have long had the power to declare legislative policies and administrative actions unconstitutional. This chapter seeks to advance that comparative effort, using the U.S. experience to analyze the social, political, and legal factors that encourage high rates of constitutional adjudication.

Important decisions of constitutional courts often resemble volcanic eruptions, reshaping the landscape of political and administrative action, usually in small ways but occasionally in large ones. Legal scholars typically focus on the justifications offered for constitutional decisions. Political scientists, in turn, speculate about the political influences on judges’ approaches to decision making and how the courts’ rulings might affect the conduct of government. Yet a different set of issues might also be addressed. To continue the volcano metaphor, what are the geological (i.e., political, economic, or legal) conditions that lead to constitutional eruptions? How do different political and legal structures influence the frequency and nature of constitutional adjudication? These questions, which concern the mobilization of constitutional courts, are the subject of this chapter. In its first section, we provide a rough map of the frequency of constitutional litigation in the United States, particularly since the 1960s. Frequent recourse to constitutional litigation, however, does not seem to be an inevitable companion of judicial authority to issue constitutional rulings, for that authority existed in the United States for two centuries before reaching the levels of judicial activism of the last five decades. Therefore, as the rest of the chapter unfolds, we explore the legal, sociological, and political factors that appear to explain the significant increase in constitutional litigation in the United States over the past half century.

We begin in the following section by discussing the malleability of constitutional law in the United States. Theories of how the U.S. Constitution should properly be interpreted are strongly contested by legal scholars, high court judges, and politicians—as is the interpretation of many important provisions and principles in the constitutional text. Not infrequently, changes in the composition of both the U.S. Supreme Court and state supreme courts lead to the rejection or reinterpretation of existing precedents or doctrines. Consequently, lawyers representing ordinary litigants and political interest groups are encouraged to file lawsuits, defenses, and appellate briefs that explicitly challenge existing constitutional law. The malleability of American constitutional law, we go on to argue, stems from three interrelated socio-political factors.

The first of those factors, discussed below, is the American system of judicial selection. Unlike most European judiciaries, American judges are not selected, trained, and promoted through an orderly, bureaucratically controlled system (Damaska 1986). Instead, American appellate judges at both the state and federal levels are selected by overtly political processes. At the state level, despite some degree of variation, most judges are chosen by popular vote.¹

At the federal level, where judges are nominated by the president and confirmed by the Senate, nominees are appointed largely on political grounds for having served their political party well or demonstrated that they have political values favored by the appointing politician. As levels of political polarization in the United States continue to increase (particularly at the elite level), the partisan nature of judicial selection has only intensified. Indeed, in recent decades, political interest groups and political party leaders often have conducted open campaigns for and against the appointment of particular candidates for the Supreme Court based on those judges’ perceived ideological proclivities (Caldeira, Wright 1988). And at the state level, intensely partisan, interest-group-funded elections for judicial positions on state supreme courts—once an extremely rare phenomenon—have become increasingly common (see Gibson 2008 for state supreme court campaign activity and Gann Hall 2001 for state supreme court elections).

The second factor, which we discuss in this chapter’s penultimate section, is the diverse army of ideologically motivated advocacy organizations and lawyers that specialize in constitutional litigation to advance their policy goals. The expansion of this demand side part of the litigation equation is linked, the chapter shows, to the opportunity structure (McAdam 1999) created by the distinctively instrumentalist legal and judicial culture of the United States. Much American legal scholarship—and much of the politically experienced American judiciary—values pragmatic problem–solving or doing justice, even at the expense of uniform and predictable application of law (Atiyah, Summers 1987: 404). In combination with the politicized appointment system, American judges’ diverse individual backgrounds, political attitudes, and notions of justice help perpetuate a legal culture that views the Constitution as a politically malleable document, one that can be harnessed to an array of political projects and purposes. Political interest groups and lawyers, faced with politically chosen judges with a flexible set of constitutional precedents and shifting interpretations of key constitutional provisions, remain ever hopeful that the reasoning in a dissenting opinion will grow into the basis for a majority opinion at some later time. Alternatively, they seek to offer the justices a set of creative legal arguments, often built on signals the justices themselves have sent in previous written opinions, which they hope will form the basis of a substantial reassessment of previously settled constitutional doctrine.

In the final section, we consider some of the structural aspects of the U.S. political system that drive groups and individuals into the judicial system in the hope that the flexibility of American constitutional interpretation will work to their benefit. Compared to other advanced industrial democracies, the United States is characterized by a high degree of political fragmentation. Political power under the U.S. Constitution is divided in many different ways: between state and federal governments, among the three branches of government, and even within the legislative branch itself. Because the legislative and executive branches of the national government in Washington do not have direct authority over city mayors, police departments, school boards, magistrates, and correctional officials, reformers often have pushed for judicial rulings that expand the rights of individuals and minority groups to pursue their grievances against local governments in court. In this way, constitutional litigation performs a coordinative function in the American federal system (Kagan 2001). In addition, the difficulty of assembling successful lawmaking coalitions at either the state or federal level means that political winners and losers both look to the courts as an alternative political forum, either for blocking unfavorable policy changes or for enforcing hard-won legislative bargains.

On the Volume of Constitutional Adjudication in American Courts

In many countries, constitutional adjudication is concentrated in specialized constitutional courts, and a significant proportion of constitutional adjudication is triggered by petitions filed by other courts, governments, or political parties (see Tate, Vallinder 1995). In the United States, however, constitutional issues can be raised in any ordinary civil, criminal, or administrative law case, in any lower court—county, state, or federal. Much constitutional adjudication is based on state constitutions rather than the U.S. Constitution. Trial court judges, for example, are legally obligated to decide any properly raised constitutional claim. Any criminal defendant can argue, in any court, that the law or order on which the claim against him or her is based, or the procedure by which it is implemented, violates the state or the federal constitution. Moreover, any individual or organization whose interests are directly and significantly affected by governmental action can assert a defense or bring a lawsuit against the relevant enforcement officials, seeking a declaration that the law or enforcement procedure violates a constitutional provision. Consequently, the U.S. Supreme Court decides only the tip of the iceberg of constitutional litigation—the most intensely controversial and politically contested cases, winnowed from the mass of constitutional decisions in state supreme courts and the lower federal