In the end, what counts is what the majority wants. This applies not only to democratically elected parliaments, but also to constitutional courts in democratic states. What appears to be the production of Indisputable Right is the result of a vote that could be different on another day with a different cast.

It was the same when the Federal Constitutional Court subsequently prohibited ex-Chancellor Angela Merkel (CDU) from venting her outrage at a collaboration between the AfD and CDU members of the state parliament for violating official neutrality obligations. At a state reception in South Africa, Merkel criticized the 2020 prime ministerial election in Thuringia as “unforgivable”. For the CDU, it applies that the CDU is not allowed to participate in such an elected government. And so it was.

The vote in Karlsruhe on this was extremely close. Three of the eight judges of the Second Senate voted against the majority; one more, and the AfD would have failed with its lawsuit. Two dissidents remain hidden behind the veil of consultation secrecy, one pulled him away: Astrid Wallrabenstein, professor of public law with a focus on social law and since 2020 at the court at the suggestion of the Greens. She wrote one of the rare special opinions: “Government action should not be neutral, even in the expectations of the citizens. Government work is political and, in a party democracy, party-political,” it says.

Does it matter that the Greens wanted Wallrabenstein as a judge? In principle no, because the elected judges are expected to leave their preferences behind. Impartiality is expected. Neutrality is expected.

Wallrabenstein will not deny this. Or is it? Her start in Karlsruhe was burdened by the fact that she was excluded from a process due to possible bias. As designated judge, she gave an interview in which she openly discussed the court’s European case law. According to her official statement, she found nothing there.

Does every word have to be weighed in gold? Wallrabenstein’s dissenting vote shows that she has general doubts about traditional state concepts of neutrality. They are not honest enough with her because they are people who fill offices. People with opinions, political goals, beliefs, preferences. According to the judge, government action only gives the “appearance of neutrality”. In truth, decisions are made on a partisan basis, and this is exactly what the voters want.

An idea that could also be transferred to the office of constitutional judge: Here the people do not vote, but the Bundestag and Bundesrat agree on the election. Ultimately, however, decisions are also made here “in the name of the people”.

Neutrality is an illusion: nominators tend to nominate candidates who agree with their party views. Some may even be party members themselves; some people are aware of it, there are no transparency obligations. After the appointment, it is considered indelicate to address their political past, for which Court President Stephan Harbarth, presumably still CDU, makes the best example. Everyone plays the game of the apolitical Federal Constitutional Court, so that the slightly mendacious “appearance of neutrality” is preserved.

So what kind of neutrality is it that the judiciary demands without being able to provide it itself? Perhaps this: a constant effort to relate one’s point of view to the environment; to doubt oneself when there is no doubt about one’s own knowledge; think everything is possible – even that one is wrong. Consequently, there is little of this in the dissenting vote.