The U.S. Supreme Court and the German Federal Constitutional Court: Do They Serve as Models or Are They in Need of Reform?

As the oldest constitutional court, the U.S. Supreme Court has served as a model for other democracies and countries have often relied on the constitutional jurisprudence of the Supreme Court. The German Federal Constitutional Court (Bundesverfassungsgericht), which celebrated its 70th anniversary last year, also adopted practices from the U.S. and has been seen as a model for constitutional review in the world. While separated in age by 162 years, both courts today face significant challenges related to the increasing politicization of courts and judicial processes, the legality of health restrictions during the Covid-19 pandemic, cases concerned with states’ (or Länder) rights versus the federal government, how to align fast-moving technological developments with settled constitutional rights regimes, and the perils populism poses to liberal democracies.

In light of these challenges, some are questioning the power of these courts. In the U.S., this has led to calls for judicial reform. Yet, even while facing a similar slate of issues, there is little talk of reforming the Federal Constitutional Court. Are these courts still respected, and do they serve as models for democracies? What do they have in common, and what are their most significant differences? To discuss this, please join us for a discussion with Caroline Fredrickson, Senior Fellow at the Brennan Center for Justice and a Visiting Professor at Georgetown Law School, and Russell Miller, Head of the Max Planck Law Network and J.B. Stombock Professor of Law at Washington and Lee University.

Caroline Fredrickson (Bosch Fellow 1993-94) is a Senior Fellow at the Brennan Center for Justice and a Visiting Professor at Georgetown Law School. Last year, she served on the Presidential Commission on the Supreme Court of the United States. From 2009 to 2019, Ms. Fredrickson was the President of the American Constitution Society. Before joining ACS, she served as the Director of the ACLU’s Washington Legislative Office and as General Counsel and Legal Director of NARAL Pro-Choice America. In addition, she served as the Chief of Staff to Senator Maria Cantwell, of Washington, and Deputy Chief of Staff to then-Senate Democratic Leader Tom Daschle, of South Dakota. During the Clinton Administration, she served as Special Assistant to the President for Legislative Affairs.

Ms. Fredrickson has published works on many legal and constitutional issues and is a frequent guest on television and radio. In addition, she regularly contributes opinion pieces for The New York Times, The Washington Post, and other news outlets. She is also the author of Under the Bus: How Working Women Are Being Run Over, The Democracy Fix: How to Win the Fight for Fair Rules, Fair Courts, and Fair Elections, and most recently, The AOC Way. Together with other Bosch Fellowship alumni, Ms. Fredrickson has a contributed chapter, “Employment Discrimination: Germany’s Lack of Legal Remedies” in Germany in Transition: A Unified Nation’s Search for Identity.

Russell Miller (Bosch Fellow 1999-2000) is Senior Research Fellow and Head of the Max Planck Law Network. He is the J.B. Stombock Professor of Law at Washington and Lee University (currently on leave). Since joining the Washington and Lee law faculty in 2008, his teaching and scholarly research has focused on public law subjects (Constitutional Law, Administrative Law, International Law), Comparative Law Theory and Methods, and German Law and Legal Culture. From 2002 to 2008, Mr. Miller was a professor at the University of Idaho College of Law. He is a two-time recipient of a Fulbright Senior Research Fellowship (Heidelberg Max Planck Institute in 2009–2010; University of Münster 2020-2021). He also has been a Max Planck Visiting Senior Research Fellow (Heidelberg Max Planck Institute in 2015–2016). During his Robert Bosch Foundation Fellowship in 1999-2000, Mr. Miller completed professional assignments at the Bundesverfassungsgericht and the European Court of Human Rights.

A recognized expert in German Law and Legal Culture, Mr. Miller is the author/editor of several books and articles in the fields of comparative law and international law, including Privacy and Power: A Transatlantic Dialogue in the Shadow of the NSA-Affair and The Constitutional Jurisprudence of the Federal Republic of Germany. He publishes a monthly column in the Frankfurter Allgemeine Zeitung; the most recent contribution was entitled “Karlsruhe Around the World: A Mid-Life Crisis?” reflecting on the 70th anniversary of the German Federal Constitutional Court. Mr. Miller is the Co-Founder and Co-Editor in Chief of the German Law Journal, an online and open-access, English-language journal reporting on developments in German, European and International jurisprudence. In 2021, he was awarded a Humboldt Senior Research Prize in recognition of his years of high-level research on German law.