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The Occurrence of Separate Opinions at the Federal Constitutional Court

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The Occurrence of Separate Opinions at the Federal Constitutional Court The Occurrence of Separate Opinions at the Federal Constitutional Court An Analysis with a Novel Database Caroline Elisabeth Wittig λογος The Occurrence of Separate Opinions at the Federal Constitutional Court. An Analysis with a Novel Database. Caroline Elisabeth Wittig The Occurrence of Separate Opinions at the Federal Constitutional Court. An Analysis with a Novel Database. Caroline Elisabeth Wittig Dissertation at the University of Mannheim, School of Social Sciences/Graduate School of Economic an Social Sciences. Mannheim, Germany, 2016. First Examiner: Prof. Thomas Gschwend, Ph.D. Second Examiner: Prof. Dr. Christoph Honnige¨ Third Examiner: Prof. Dr. Marc Debus Date of oral examination: October 27, 2016 Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet uber¨ http://dnb.d-nb.de abrufbar. c Copyright Logos Verlag Berlin GmbH 2016 Alle Rechte vorbehalten. ISBN 978-3-8325-4411-9 Logos Verlag Berlin GmbH Comeniushof, Gubener Str. 47, 10243 Berlin Tel.: +49 (0)30 42 85 10 90 Fax: +49 (0)30 42 85 10 92 INTERNET: http://www.logos-verlag.de Summary Courts exercising constitutional review belong to the most powerful actors in a political system. While institutions like the Supreme Court of the United States have been subject to extensive analyses, research on numerous other courts lags behind. This is due to several reasons: First, in former times courts were often not perceived as political actors. Second, there was no data available for larger studies. A further challenge in expediting research on courts is that existing theories are hardly applicable to certain court types. In this dissertation, I approach these aspects. I demonstrate how to build a court database; more precisely: a database of decisions of the German Federal Constitutional Court. Furthermore, I develop a new theory for explaining the occurrence of separate opinions, suitable for all types of courts. Even more, I can explain why judges do not deviate or why they choose to deliver a full dissent, a partial dissent, or a concurrence. I argue that judges are highly determined by their expectations regarding their career after retiring from the court. If they plan to remain in the law community, they are reluctant to disclose their different opinion. By contrast, if they retire fully or turn to another field they will be less keen to refrain from public deviation. Employing data from the new database, I apply the theory to the German Federal Constitutional Court. I can show that in the vast majority of cases the judges do not write separate opinions. However, when deviating they deliver considerably more full dissents than partial dissents or concurrences. The use of partial dissents and concurrences does not differ significantly. A further crucial finding is that it is less important whether a topic is controversial. It is rather the vi SUMMARY amount of questions a case raises that causes a potential for disagreement: The more issues the judges have to address, the more issues they can disagree on. Finally, I can prove that the judges’ post-court plans determine their behavior: Judges leaving the law community are more likely to deliver separate opinions. In addition, the more the time of retiring from the court approaches, the more divergent is the behavior between those judges remaining in jurisdiction or jurisprudence and those leaving it. Acknowledgements Now that a (long) journey has come to an end, this is the time and place to express my gratitude to all those who have accompanied me in the endeavor to write this dissertation. First of all, I would like to thank my supervisors Thomas Gschwend and Christoph Honnige.¨ From the first day on they have been extraordinarily sup- portive and provided me always with the most valuable feedback. Moreover, I was fortunate to have excellent working-conditions. In this context I also want to point out that I never had to worry about funding, which made it much easier to focus on my actual work. I am indebted to Thomas Gschwend for making this possible. In addition, with the project “The Federal Constitutional Court as a Veto Player” funded by the German National Science Foundation, they granted me the opportunity to work in a thrilling, yet work-intensive project. I really enjoyed being part of it. Benjamin G. L. Engst has been one of the backbones of this project. His enthusiasm and power as well as productive discussions made him a great colleague. Moreover, I could approach him with the most stupid questions, always receiving profound advice without any impatience. Soon we became close friends, and I highly cherish all his support (as well as most of his jokes). I also want to thank Marc Debus for his willingness to serve as third examiner of this dissertation. Sophie Augustin who helped me collecting information on courts world wide deserves to be mentioned here, as well as numerous other student assistants. viii ACKNOWLEDGEMENTS I would like to address in particular my marvelous office mate Lukas Stotzer.¨ Through all the years we shared thoughts and concerns but most of all a lot of laughter irrespective of sauna-like climate during the summer or a broken heating in the winter. Thank you for a great time (and for always providing me with the latest news from www.transfermarkt.de)! Moreover, I want to highlight the extraordinary good atmosphere at Thomas Gschwend’s Chair of Quantitative Methods in the Social Sciences. This is – in addition to Thomas himself – due to Steffen Zittlau1, Christian Arnold, Sean Carey, Benjamin Engst, Marcel Neunhoeffer, Christel Selzer, Daniel Stegmuller,¨ Sebastian Sternberg, and Lukas Stotzer.¨ This group of brilliant, funny, helpful, and incredibly nice people made me every day looking forward to going to the office. Katrin Paula has been an invaluable advisor in methodological questions. But beyond this and probably even more important she has become one of my closest friends. Together with Moritz Heß we spent a lot of time at the dinner table talking about anything and everything. They both are the most supportive friends I can possibly think of, and I want to express my deepest thanks to them. Finally, my sincere gratitude is due to my parents, Elisabeth and Sigmar Wittig, for manifold reasons: First, they – mostly my mother – had the doubtful pleasure to proofread chapter by chapter. I am sure Uwe Johnson and Peter Handke are more exciting to read. Second, although being outside their subject area, they provided helpful and valuable suggestions. And third, their unconditional support has always been the most solid basis for enduring this journey. I will remain thankful to all the named an unnamed people who helped me succeed and close with a quote by William Shakespeare: “Farewell, fair cruelty.” Caroline Wittig, Mannheim, July 2016 1Dear Steffen, please note that I deviated from the alphabetical order, so you can be at least once the first one on a list. Contents Summary v Acknowledgments vii Table of Contents ix List of Figures xiii List of Tables xv 1 Introduction 1 1.1 Courts as Political Actors . .2 1.2 Studying Separate Opinions . .4 1.3 The Necessity of New Approaches . .5 1.3.1 Theories of Judicial Decision-Making . .5 1.3.2 Deficiencies of the Theories . 10 1.4 A Novel Study . 15 1.5 Innovations . 16 2 The Constitutional Court Database 19 2.1 Premises and Conceptual Development . 19 2.1.1 Conceptualization . 21 2.1.2 Purpose . 21 x CONTENTS 2.1.3 What Data and Where to Find it . 23 2.1.4 Structural Demands . 26 2.1.5 Technical Realization . 30 2.1.6 Collection Process . 31 2.2 From a Decision to Variables . 34 2.2.1 Actors . 35 2.2.2 Subject . 36 2.2.3 Legal Concepts . 37 2.2.4 Essential Content . 38 2.2.5 Key Facts . 39 2.3 Variables in the Database . 40 2.3.1 Case Level . 41 2.3.2 Proceeding Level . 47 2.3.3 Concluding Remarks . 54 3 Separate Opinions 57 3.1 Separate Opinions in an International Perspective . 60 3.2 Separate Opinions in Germany . 61 3.3 Existing Research . 64 4 Theory 71 4.1 Individual Costs and Benefits of Separate Opinions . 71 4.2 A New Approach . 73 4.2.1 Norm of Consensus . 74 4.2.2 Utilities of Norm Adherence . 75 4.2.3 Norm-Identification . 77 4.2.4 Level of Disagreement . 82 4.3 The Identification-Disagreement Model . 84 4.4 Hypotheses . 87 5 Empirics 93 5.1 Data Set and Case Selection . 93 5.2 Operationalization . 98 5.2.1 Dependent Variable: A Judge’s Vote . 99 5.2.2 Explanatory Variables . 99 5.2.3 Control Variables . 106 5.2.4 Descriptive Statistics . 110 5.3 Methods and Estimation Strategy . 114 CONTENTS xi 5.4 Results . 117 5.4.1 Hypothesis 1: Potential for Disagreement . 120 5.4.2 Hypothesis 2: Norm-Identification . 122 5.4.3 Hypothesis 3: Differences between Professions in Contro- versial and Uncontroversial Cases . 124 5.4.4 Hypotheses 4a & 4b: Types of Separate Opinions . 126 5.4.5 Hypothesis 5: Time and Norm-Identification . 128 6 Conclusion 131 6.1 Scientific Contributions . 132 6.1.1 Building a Database . 132 6.1.2 A New Theoretical Framework . 133 6.1.3 Separate Opinions at the FCC . 134 6.2 Implications for Further Research . 135 6.3 Outlook on Future Research . 136 Bibliography 139 Appendices 153 A Separate Opinions 153 B Empirics 157 B.1 Correlations . 157 B.2 Effect of Controversy at Mean of Paragraphs .............. 159 B.3 Proportions of Vote Types . 159 B.4 Proportional Odds Assumption .
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