Justifying dissent – A qualitative content analysis of separate opinions at German state constitutional courts

Dissent is an inherent feature of decision-making in collegial courts. However, courts retain the aura of uniform judicial bodies unless disagreement is revealed to external audiences in the form of separate opinions. Long considered alien to judicial systems in the civil law tradition, separate opinions have been introduced at constitutional or high courts in a majority of European Union Member States. This has led to a flourishing body of research on judicial dissent at apex courts throughout Europe which traces both the historical origins and investigates the determinants of revealed dissent. However, evidence on what drives judicial dissent remains inconclusive. While some analyses point to the impact of individual career backgrounds of judges and to the degree of politicization of the case, as borne out by the party initiating court proceedings, others suggest that the legal complexity of cases or – more specifically – disagreement on the relationship between constitutional norms at different levels of government provoke open judicial dissent. The proposed paper picks up on this research puzzle. It exploits the potential of dissenting opinions as legal texts to drill down to the motivations of drafting separate opinions. After all, when judges disagree with a judicial decision reached by the court and wish to reveal their dissent, they are faced with the same constraints and obligations as the majority: They must furnish an argumentation – founded on law – for why an alternative decision is justified and legally valid. The working hypotheses of this paper are: 1) Separate opinions reflect the motivation to shape and comment on legal and constitutional development, either to signal ambition for innovating on statutory and legal interpretation or to criticize the departure from established legal doctrine. 2) The primary addressees of separate opinions are external audiences, e.g. the legal community, current and future litigants, policy-makers and an invested public. These hypotheses are tested on the basis of a qualitative content analysis of 46 decisions at 11 German state constitutional courts that have been adopted with at least one separate opinion. Thus, the paper sheds light not only on legal argumentation and justification as understudied aspects of judicial behavior, but also puts subnational constitutional courts into the limelight as research objects with comparative merit for the law and politics literature. Being full-fledged constitutional courts embedded in a multi-level constitutional compound, they routinely settle political disputes that raise questions on the boundaries of jurisdictional authority and autonomy.