Germany looks to prevent far-right takeover of the judiciary

The scenario seemed, until recently, too far-fetched to take very seriously.

A populist authoritarian wins a federal election in Germany, and shortly after taking power, begins to stack the constitutional court with loyalists who set out to dismantle the foundations of the country’s democracy.

Scenarios like these have played out in Poland and Hungary, where right-wing populist governments won elections and then moved to undermine the independence of the courts.

Now Germans fear, given the strength of the far-right Alternative for Germany (AfD) and the deep unpopularity of the ruling coalition government, it could happen in their country too.

Mainstream German politicians are increasingly examining ways of fortifying the country’s democracy, seeing Poland and Hungary as cautionary tales. The latest proposal is to enshrine the rules that govern Germany’s constitutional court in the constitution itself — so that any changes to those rules would require a two-thirds parliamentary majority; currently, those changes require a simple majority.

“We have seen in Poland how quickly a constitutional court can be paralyzed if simple majorities can change the way the court works,” said Johannes Fechner, a lawmaker in Chancellor Olaf Scholz’s Social Democratic Party (SDP).

‘Flu season for democracy’

The proposal illustrates the growing alarm among many Germans over the rise of the AfD, a party that has grown more popular even as it has become more radical. The party is currently polling in second place nationally; in most of the regions of the former East Germany, where three state elections will be held in September, it has been leading in polls.

“People realize it’s sort of flu season for democracy,” Ulf Buermeyer, a German constitutional law expert told POLITICO. “Things are getting dangerous right now. And so people are thinking about democracy’s immune system.”

Germany’s postwar constitution — designed to avoid a repeat of the Nazi past — contains provisions to prevent an anti-democratic party from using democratic means to rise to power. Parties deemed anti-democratic may have their state financing revoked, or be banned outright. Though the legal hurdle for such measures is very high, there’s a growing debate in Germany about whether the government should attempt to ban the AfD.

Ultimately, however, it would be up to the justices of the constitutional court to decide on whether the party can be banned — another reason, advocates argue, to push for changes to the constitution to protect the court.

Ultimately, it would be up to the justices of the constitutional court to decide on whether the party can be banned — another reason, advocates argue, to push for changes to the constitution to protect the court | Jens Schlueter/AFP via Getty Images

Justices of Germany’s federal constitutional court serve 12-year terms and, in order to assure their independence, they cannot be re-elected. Politicians from both center-left and center-right parties have spoken out in favor of now anchoring such rules in the constitution.

Despite that apparent consensus, it’s unclear whether conservative opposition leaders in Germany’s parliament, in an atmosphere of growing partisan rancor, will give the ruling coalition the votes it needs to do so.

“We are very cautious when it comes to further amendments to the constitution,” Friedrich Merz, the leader of the center-right Christian Democratic Union (CDU), recently said in parliament.

Still, many in Merz’s party’s support the change, reflecting that a fundamental shift is taking place in Germany society. As the AfD comes closer to assuming real power, mainstream parties are increasingly considering using legal means to contain it.

There are few greater signs of this shift than the ongoing protests against the AfD and right-wing extremism in Germany. Hundreds of thousands of Germans in cities across the country have taken part in the massive demonstrations in recent weeks.

The demonstrations, sparked by a report detailing a clandestine gathering of right-wing extremists —including politicians from the AfD — to discuss a “master plan” to deport foreigners and “unassimilated citizens,” illustrate how grassroots opposition to the party has been galvanized. Polls suggest the report and ensuing uproar have somewhat hurt the party’s popularity, at least for now.

“I think it has now become clear to a lot of people that our liberal democracy is under threat and that it is no longer enough to simply look on,” Karin Prien, a deputy chairperson of the CDU, said of the protest movement on German public radio. “Anti-democrats and fascists are using democratic instruments to abolish democracy and that’s why we have to keep a very, very close eye on what they are doing.”