Germany Bolsters Constitutional Court Amid Fears of Democratic Backsliding
Rising political polarization and AfD influence prompt legislative efforts to protect judicial independence.
1Constitutional Safeguards Adopted
In December 2024, the German parliament passed a landmark amendment to solidify the Federal Constitutional Court's structure. The new law enshrines the number of judges at 16, sets 12-year terms, and mandates a maximum age of 68. These rules are now part of the constitution to prevent future political interference.
2The Polish Scenario Concern
Legal experts, including former judge Gertrude Lübbe-Wolff, warn that Germany is not immune to the judicial crises seen in Poland or Hungary. While the democratic tradition in Germany is deeply rooted, the rise of the AfD has triggered alarms among politicians regarding the potential for systematic institutional erosion.
3Declining Public Trust
Public confidence in the Federal Constitutional Court has dropped significantly, falling from 81 percent in 2021 to 66 percent currently. Analysts suggest this decline is linked to controversial pandemic-era rulings, including decisions on lockdowns and mandatory medical vaccinations, which fueled public frustration and perceptions of overreaching judicial power.
4The AfD Dilemma
A central debate involves whether the AfD, a party labeled as partially extremist by intelligence services, should nominate judges. While some argue for pluralism, others fear that allowing AfD-backed candidates could lead to long-term sabotage of the court’s operations, especially if the party eventually gains significant governing power in Germany.
5Structural Vulnerabilities Remain
Despite the 2024 reforms, researcher Stefan Martini warns that the court remains vulnerable. The requirement for a two-thirds majority to elect judges is not constitutionally protected, meaning a future parliamentary majority could potentially lower this threshold to simple majority voting, mirroring tactics previously used to weaken judicial independence elsewhere.
6Political Pressure on Appointments
The fragility of the selection process was highlighted in mid-2025 during the failed candidacy of Frauke Brosius-Gersdorf. Despite initial support from the SPD, CDU/CSU withdrew backing due to political labeling and unproven plagiarism allegations. This episode raised serious questions about the influence of media and political pressure on judicial appointments.
7Historical Judicial Activism
The court has historically maintained independence from both Berlin and Brussels. Notable rulings include the 2019 decision limiting BND mass surveillance of foreigners and the 2021 climate ruling, which forced the government to refine emission reduction targets. These actions established the court as a powerful, autonomous guardian of the constitution.
8The Role of Public Respect
Experts emphasize that legal protections are only as strong as the public's respect for the rule of law. Former judge Lübbe-Wolff notes that if citizens stop viewing the court as a legitimate arbiter, its independence becomes precarious. Ultimately, the court's survival depends on societal trust rather than just written statutes.
9Future Risks of Capture
If the AfD were to lead a government for an extended period, experts fear they could systematically alter the court’s composition. By appointing loyalists over many years, a hostile majority could eventually attempt to change the Basic Law itself, effectively neutralizing the court as a check on their political agenda.
10Democratic Resilience Test
Germany faces a critical period as it navigates political polarization ahead of the February 2025 elections. While the risk of a total collapse of judicial independence is considered lower than in Eastern Europe, the ongoing debate serves as a vital test of the country's ability to defend its democratic institutions.