Tracing the motivations of revealed dissent – The case of the subnational constitutional courts of Germany

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 dissenting opinions. Long considered alien to judicial systems in the civil law tradition, dissenting opinions have been introduced at constitutional or high courts in a majority of European Union Member States. Against this backdrop, a growing body of research has devoted attention to judicial dissent at apex courts throughout Europe, tracing both the historical origins and investigating the determinants dissenting opinions. 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. However, very few studies have thus far exploited the potential of dissenting opinions as legal texts to drill down to the motivations of dissenting opinions. The proposed paper seeks to address this shortcoming by turning to the case of subnational constitutional courts in Germany. Being full-fledged political systems, all German state (Länder) feature their own genuine constitutional courts, a majority of which today allow for dissenting opinions to be published and attached to the court decision. Using qualitative content analysis, I draw on a corpus of 46 dissenting opinions from 11 states in the period 2009-2018 to disentangle the motivations of judges to break away from the majority decision of their colleagues. I distinguish between two principal, contrasting motivations of judicial dissent that inform a deductive coding scheme: 1) signalling ambition for the development of legal interpretation and 2) criticizing the departure from established legal doctrine.