Putting Courts Under Pressure: When Lawmakers Push Constitutional Boundaries

Our understanding of the interaction between courts and political branches in modern democracies is incomplete. Courts are traditionally seen as passive but moderating forces in politics, with lawmakers expected to avoid pursuing policies likely to fail constitutional review. This book argues, however, that such an expectation oversimplifies the dynamics at play. Instead, lawmakers often take constitutional risks in their policy choices and challenge courts’ ability to enforce constitutional boundaries.

Schroeder demonstrates how lawmakers deliberately push constitutional boundaries, signalling credible threats of non-compliance to courts, which respond by easing legal restrictions on lawmakers’ policy-making. This perspective challenges the prevailing view that constitutional review deters legislative overreach. Through a formal theoretical model and robust empirical evidence, the book provides counterintuitive insights into when and why courts accommodate lawmakers who disregard constitutional concerns about their policy choices, even at significant political cost.

Focusing on the German Federal Constitutional Court (GFCC), one of the most influential courts globally, the book examines how lawmakers repeatedly pressured the GFCC to loosen constitutional constraints on policies. Schroeder’s analysis presents a normative quandary for democracies. While courts are tasked with protecting constitutional rights, their accommodation of political actors on high-stakes issues raises concerns about the erosion of constitutional norms. By integrating insights into legislative and judicial behaviour, the book provides a novel perspective on politics in systems of separation-of-powers, making it an essential read for scholars of judicial politics, legislative politics, and democratic governance.

Comparative Politics is a series for researchers, teachers, and students of political science that deals with contemporary government and politics. Global in scope, books in the series are characterized by a stress on comparative analysis and strong methodological rigour. The series is published in association with the European Consortium for Political Research. For more information visit www.ecprnet.eu http: //www.ecprnet.eu

The series is edited by Nicole Bolleyer, Chair of Comparative Political Science, Geschwister Scholl Institute, LMU Munich, and Jonathan Slapin, Professor of Political Institutions and European Politics, University of Zurich.

Philipp A. Schroeder, Postdoctoral Researcher, Department of Political Science, Ludwig-Maximilians-University Munich

Philipp A. Schroeder is a Postdoctoral Researcher at the Geschwister-Scholl-Institute of Political Science at Ludwig-Maximilians-University Munich. He completed his doctoral degree at the Department of Political Science at University College London, supervised by Christine Reh, Lucas Leemann and Tim Hicks. Prior to arriving in Munich, he was a Postdoctoral Researcher at the Department of Law at Umeå University, Sweden. His work has been published in journals such as Comparative Political Studies, the Journal of European Public Policy and the Journal of Law and Courts.