Germany's Constitutional Court Faces Trust Crisis as Experts Debate Reform

Germany's Federal Constitutional Court, the nation's highest judicial authority, marked its 75th anniversary this year facing an uncomfortable question: why is the public losing faith in it? A fresh survey by YouGov found that roughly two-thirds of Germans—66 percent—still trust the court, a figure that sounds respectable until you learn what it used to be. Just five years earlier, in 2021, trust stood at 81 percent. The court remains more trusted than any other branch of German government; the upper house of parliament scores 47 percent public confidence, the lower house 38 percent, and the federal government itself a mere 29 percent. But the downward trajectory is real, and it has prompted serious people to ask whether the institution designed to safeguard German democracy after World War II needs to change how it operates.

The reasons for the erosion are not entirely clear, though several explanations circulate among analysts and observers. Some point to the court's decisions during the COVID-19 pandemic, when it allowed the government to restrict certain civil liberties in the name of public health. Those rulings sparked protests and, critics argue, suggested the court was not the independent arbiter it claimed to be but rather willing to defer to executive power when circumstances demanded it. That same period saw trust decline across all branches of government, making it difficult to isolate the court's specific role in the broader loss of confidence. But the timing is suggestive: the court's reputation took a hit precisely when it made decisions that felt political rather than purely legal.

Christine Landfried, a former professor of political science at Hamburg University, pushes back against the notion that constitutional courts can somehow avoid politics. "A constitutional court always deals with political questions," she told Deutsche Welle. The difference, she argues, lies in method. A constitutional court should ground its decisions in legal reasoning and constitutional interpretation, not in political debate or party preference. The court was established in 1951 to ensure that West Germany's laws complied with its Basic Law, adopted two years earlier. Over decades, it has had to translate constitutional principles—democracy, human dignity, the rule of law—into rulings on concrete matters: data privacy, climate protection, unemployment benefits. These are inherently political questions, but the court's legitimacy depends on answering them through legal argument rather than political calculation.

Gertrude Lübbe-Wolff, a former judge on the Constitutional Court, identifies a different problem: the court's composition no longer reflects the political reality of modern Germany. Under the current system, the major parties in parliament—traditionally the Christian Democrats and Social Democrats—negotiate among themselves to nominate judges to the court's two eight-seat chambers. That cozy arrangement fractured last year when the Social Democrats nominated Frauke Brosius-Gersdorf for a seat. Her positions on abortion decriminalization and other issues drew criticism from conservative quarters, and a social media campaign questioning her suitability gained traction. Some Christian Democratic parliamentarians withdrew their support, and Brosius-Gersdorf ultimately withdrew her candidacy. The episode damaged public confidence in the selection process itself, suggesting that the court's judges were chosen through backroom deals and subject to political pressure rather than merit-based evaluation.

Lübbe-Wolff has proposed reforms to address this structural weakness. In her new book, "Does the Federal Constitutional Court need (more) Reform?," she suggests that instead of allowing political parties to handpick nominees, the court should advertise vacancies like any other employer and allow qualified candidates to apply directly. A parliamentary committee would then evaluate applicants and make selections. Austria and Switzerland already use similar systems. Landfried endorses this approach: it would reduce the role of party politics in judicial selection while still maintaining democratic oversight. "Very good people could apply who haven't been chosen by the party," Landfried said.

More controversially, Lübbe-Wolff argues that the far-right Alternative for Germany party, or AfD, should be permitted to nominate candidates for the Constitutional Court. Germany's domestic intelligence agencies classify parts of the AfD as extremist and hostile to the constitution, and the YouGov survey found that only 34 percent of AfD supporters trust the court, compared to roughly 80 percent among supporters of the major parties. Yet some state-level constitutional courts in Bavaria and Baden-Württemberg have already accepted AfD nominees. Lübbe-Wolff frames this as a structural necessity: the AfD has grown large enough that the traditional two-party system no longer works. The Christian Democrats and Social Democrats now need votes from the Left Party to form a majority in the selection process, creating what she calls an "imbalance." She believes there are people affiliated with the AfD who would reliably uphold the constitution and could serve on the court, though she acknowledges they may be reluctant to publicly identify themselves as potential nominees.

Landfried firmly disagrees. Given Germany's history under Nazi rule, she argues, the Constitutional Court must be especially vigilant about allowing people with far-right sympathies into its ranks. "For me, sections of that party are hostile to the constitution, it is partly right-wing extremist," she said. She does not believe all AfD voters are extremists, but she has deep reservations about opening the court to nominees from a party that, in her view, poses a threat to the democratic order the court exists to protect. The debate reflects a genuine tension: how can a court designed to defend democracy remain open and representative while also protecting itself against those who might use democratic processes to undermine democracy itself?