For 75 years, Germany’s Federal Constitutional Court has been one of the country’s most trusted institutions and a central force in shaping its post-war democracy. But as political conflict becomes more polarised, the court faces a different kind of challenge: decisions intended to defend the constitutional order could increasingly place it directly inside the political conflicts it has traditionally helped to contain.
The scale of that challenge is illustrated by a hypothetical scene set in September 2028. In Karlsruhe, police drones circle above the city while television outside-broadcast vehicles gather around the palace park. The eight judges of the court’s Second Senate emerge in their red robes, led by Vice-President Ann-Katrin Kaufhold. They have been under police protection for months after receiving death threats and having their private addresses published online. The judges are about to announce a ruling on an application by the Chancellor, the President of the Bundesrat and the President of the Bundestag, Julia Klöckner, for the prohibition of the Alternative for Germany (AfD).
The scenario is explicitly presented as a thought experiment, not a prediction. The AfD leaders Alice Weidel and Tino Chrupalla, alongside the party’s only state premier and parliamentary leaders from the Länder, await the decision. The party has repeatedly been asked whether it would accept such a ruling and has responded evasively, while saying that its commitment to the Basic Law should not be questioned and that it could take a case to the European Court of Human Rights.
The fictional proceeding takes only a year and a half. That would make it unusually fast by German standards: the first party-ban case, against the Socialist Reich Party in 1952, lasted 17 months because the evidence was considered overwhelming, while the proceedings against the Communist Party of Germany in 1956 lasted four and a half years. The two unsuccessful proceedings against the NPD took more than two and three years respectively. In the imagined 2028 case, the court would have to decide before the next scheduled federal election in 2029, after demonstrations and disturbances surrounding a three-day oral hearing.
A prohibition would have immediate political consequences. Six of the eight judges would have to conclude that the AfD sought to abolish the free democratic basic order and establish a different state. If the court declared the party unconstitutional, its parliamentary mandates would disappear from the Bundestag, the state parliaments and local councils. The resulting changes in parliamentary majorities could be substantial. The coalition parties in the scenario have already announced that they would seek new elections. The status of an elected AfD state premier would also become a legal dispute.
The thought experiment draws its significance from the court’s actual history. It began work in September 1951, two years after the Basic Law was adopted, and was one of its central innovations without a genuine precedent in Germany’s constitutional tradition. Over seven and a half decades, it turned constitutional rights into enforceable legal standards and helped liberalise the Federal Republic. It became a model for constitutional courts established in eastern Europe after 1989 and remains the institution enjoying the highest level of public trust among Germans, although that trust has declined.
The court’s influence has often operated by finding compromises within deeply contested issues. It intervened to strengthen equality between men and women, particularly through the work of Erna Scheffler, for a long period its only female judge. It repeatedly defended freedom of expression, including in 1995 when it ruled that the statement “Soldaten sind Mörder” was protected by freedom of expression and could not be punished generally.
Its decisions have also carried major political consequences. In 1977, the court rejected a request from the family of kidnapped employers’ federation president Hanns Martin Schleyer to exchange him for RAF prisoners; Schleyer was murdered two days later. In 2023, the court declared the government’s budgetary experiments involving Olaf Scholz, Christian Lindner and Robert Habeck “nichtig”, contributing to the collapse of the governing coalition. The court’s influence led former Stanford president Gerhard Casper to describe Germany in 2001 as a “Karlsruher Republik”.
Yet the political conditions in which the court operates are changing. Its decisions have often moved German politics towards the centre and reinforced compromise, including its rulings on abortion, which established a legally contested arrangement under which abortions remain unlawful but are generally not punished. It has also curtailed expansive police powers introduced after the 11 September attacks and modified an absolute smoking ban in restaurants by creating exceptions.
That mediating role becomes harder when political conflict itself is the subject of constitutional litigation. Trust in the court fell from 81 per cent in 2021 to 63 per cent in 2025 following the failed election of Frauke Brosius-Gersdorf. The reasons remain unclear, although the article says there is a view in Karlsruhe that the highly emotional debate contributed to a perception that the court was more political than many citizens wanted.
The pressure could increase if the court becomes involved in disputes involving AfD-led governments. Debate over “Bundeszwang”, the federal government’s possible intervention against potentially unconstitutional measures by an AfD-led government in Saxony-Anhalt, could eventually reach Karlsruhe. At the same time, the prospect of AfD-nominated judges joining the court could bring political divisions into the institution itself.
The court has no police force of its own to enforce its rulings. Its authority therefore depends not only on law but also on the willingness of political institutions to accept its decisions. The architects of Germany’s post-war constitutional order deliberately placed party-ban decisions with the court as part of a system of “militant democracy”. For 75 years, it has largely avoided becoming a directly confrontational institution. The source’s central warning is that this may no longer remain possible.
