Balancing as a Means of Judicial Activism? Analysis of the German Federal Constitutional Court's Use of Balancing Language

Abstract

Many constitutional courts use balancing in constitutional right adjudication. However, critics argue that balancing is an (self-)empowerment of the courts and a tool of judicial activism. It is claimed that constitutional courts are increasingly using this technique when ruling against the legislature, for example when striking down laws. This study empirically examines the status of balancing in the case law of the German Federal Constitutional Court. It demonstrates that text-as-data methods can be used to analyze judicial reasoning by using word embeddings to measure the use of balancing language. It is shown that the use of balancing language increased during the first fifty years of the court's existence. Since then, there has been a decline. The court also tends not to use more balancing language in decisions overturning laws. This evidence challenges the critique's assumption that balancing is a tool of judicial activism.