Constitutional Justices have feelings too, you know

Susanne Baer, the newest member of the Federal Constitutional Court, appointed in Novemer 2010, has been long enough in office to know all about the ways and mores of that venerable institution, but not long enough to lose her scientist’s disposition to ponder and wonder how this thing actually works, as well as her refreshing openness about sharing her thoughts and feelings.

Yesterday I heard her speaking at a conference on “Constitutional Courts and their Role in Political Transformation Processes” at Humboldt-University here in Berlin. Her topic was “the daily life experience at the court” – a number of unsystematic, entirely personal perceptions and thoughts about how the court works at the inside, particularly how it handles the tricky question how far it can go.

That, she said, is mostly a personal matter: The US-coined term “judicial restraint” does not apply in Germany, and the whole debate “suffers from the typical illness of transnational travelling theories”. In Germany it’s all about “justice’s restraint”, i.e. you have find out for yourself the limits of your role, and you do so by studying how your predecessors handled it. There are no rules how to do it, but there are “negative role models”: Your colleagues will let you know that you don’t want to become a second Mr. So-and-So and that it might be a good idea to avoid the example of Ms. Such-and-Such (she didn’t mention any names at all, neither Evelyn Haas nor Paul Kirchhof nor any other that might spring to mind…), but other than that it’s totally up to you where you draw the line.

A very strong and effective restraint mechanism is, according to Justice Baer, published opinion. It was very flattering to hear how anxiously the justices scrutinize the press clippings delivered to them every morning, searching for critique or praise of their decisions. (The clippings do not include online publications, though – a totally unpardonable omission, in my biased view). “I never read the paper as much as I do now”, she said. Bad press really seems to get to them. “We do care a lot what people say. Very sensitive beings, those justices.”

The same goes for academic criticism: The old days of constitutional court positivism are, according to Justice Baer, gone. There was a new “junior league of critique”, that showed no hesitation at all to find fault with the court and it’s decisions and even relishes in that task, sometimes to the annoyance of the touchy justices: “The feeling is, they will find again we did wrong”, Justice Baer complained and added the observation that some of that critique amounts to nothing more than claiming that “you are not smart enough, we would be smarter.”

The bad thing about delivering final judgments on some of the most fiercely contested issues of the country is: You can’t talk to anyone beforehand. “I am on my own. I am a totally lon…