Lawfare Rising
The Most Consequential Climate Appointment You Haven’t Heard About.
Antonio Gramsci spent most of his adult life behind bars. A co-founder of the Italian Communist Party, he was arrested by Mussolini in 1926 and sentenced to twenty years. Over a decade in confinement he filled thousands of pages—later published as the Prison Notebooks—with a strategy for revolution that did not depend on barricades or bullets.
Unlike Lenin and Trotsky who insisted on seizing the state by force, Gramsci offered a subtler plan: capture the realm of ideas first, and political power would eventually follow. From Paris to Frankfurt, his notion of “cultural hegemony” infused the student movements of the 1960s, the rise of critical theory, and later the climate and identity movements of the 2000s.
Gramsci’s blueprint was never expected to breach the last bastions of state power. Certainly not Germany’s Constitutional Court, long regarded as the guardian of liberal democracy and economic stability. Until recently, the idea that a jurist openly citing Gramsci’s program of cultural hegemony could be elevated to this bench would have sounded absurd.
Yet on September 25, the German federal parliament elected Ann-Katrin Kaufhold—a Munich law professor whose work is explicitly inspired by Gramsci—as vice president of the Constitutional Court, one of three new judges on the sixteen-member institution. What might sound like an academic curiosity at first runs deep.
Kaufhold draws on ideas that could reshape the legal environment of Europe’s largest economy. This appointment has the potential not only to influence jurisprudence, but also to unleash a torrent of green lawfare against everything from new gas plants to energy-hungry data centers.
Her election lands as the second half of a one-two punch. Earlier this year, Germany’s constitution was amended to include the phrase “climate neutrality by 2045.” Friedrich Merz downplayed it at the time, insisting it merely defined the purpose of the new record debt the amendment made possible. But I wrote then:
Every word written into a law, especially something as foundational as a constitution, has weight. It must be carefully balanced and considered. Because once it’s in there, someone will use it. The law isn’t interpreted according to what some politician says in an interview. It’s interpreted according to the wording itself and the context in which it’s later invoked.
In 2021, the Constitutional Court forced the federal government to tighten its climate targets. The latest constitutional amendment, combined with Kaufhold’s election, pushes this trajectory into higher gear. Let’s explore how it may redefine investment risk in Europe’s industrial heart.
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Kaufhold’s conviction that climate change is paramount is no secret. That in itself is not a problem, constitutional judges are entitled to personal views. The issue is how she translates that conviction into institutional design. For her, climate is not a question to be worked out within the framework of parliamentary democracy, with courts merely keeping the results within legal bounds. Instead, she openly calls for expanding the authority of unelected bodies. When asked about the role of institutions, she said (emphasis added):
Naturally enough, parliaments and governments spring to mind, but we’ve seen how they fail to move quickly enough. Therefore, we must consider how to expand the range of institutions that can have an impact. […]
[P]arliaments have strong political legitimacy, because we reelect them every few years. In principle, therefore, their decisions should meet with particularly broad acceptance.
Courts and central banks by contrast are independent. This makes them better placed in the first instance to make unpopular decisions. But the risk is greater with these institutions that the measures will not be similarly accepted.
In other words: the democratic process is too slow for the climate project. Courts and central banks, insulated from voters, are better positioned to impose what she deems necessary. Parliaments, in this view, serve mainly to confer broad acceptance after the fact.
She conceded that “no institution can act against a majority opinion in the population in the long run.” In a democracy, that opinion is mainly channeled through elections, where citizens choose the parties most closely aligned with their worldview. But Kaufhold, drawing on Gramsci, takes a more unorthodox view:
If one follows Gramsci, protest movements, not political parties, have the potential to redefine society’s basic convictions, shift cultural hegemony, and create the possibility of fundamental change. By contrast, parties that already hold majorities, or hope to win them, will rarely touch the convictions that underpin their position, since those convictions are the unstated condition of their power.
For a constitutional judge, that statement carries enormous weight. It suggests she may be inclined to treat the “convictions” expressed by protest movements as equally or even more authentic than the objectives articulated by parliament.
And that raises a simple but crucial question: protest by whom? Parliament is tethered to voters. Elections are safeguarded by procedures that make them harder to manipulate. Protest movements face none of those constraints. They are porous, easy to amplify, and can be bankrolled by forces with no accountability to citizens: NGOs, philanthropic foundations, even rival states. A constitutional doctrine that sanctifies street movements over elected representatives doesn’t just weaken parliament. It hands influence to whoever can fund the loudest disruption.
Her vision goes further still. Kaufhold authored a section in one of the leading commentaries on the German constitution. These commentaries function as legal “manuals” that strongly influence how judges, prosecutors, and ministries interpret the law. In the fourth edition of the heavyweight series founded by Horst Dreier, Kaufhold raises the question of whether elements of nature could themselves be bearers of constitutional rights.
It’s a remarkable departure from the Enlightenment tradition. Since the Enlightenment, law has rested on the premise that only human beings—endowed with reason and capable of taking responsibility for their actions—can hold rights. A right exists as the flip side of an obligation. To extend rights to nature would therefore dissolve the link between personhood, agency, and accountability.
Yet Kaufhold implicitly entertains the idea that the North Sea, the Alps, or a forest might one day count as legal persons—a notion that echoes pre-modern beliefs in spirits inhabiting trees, clouds, and mountains. And who would invoke those new “rights”? Most likely the same environmental NGOs that already enjoy legal standing in planning and permitting disputes.
That’s why the consequences of her election start long before any ruling. By elevating a judge who openly casts for a radical reinterpretation of the constitution, the calculation for activist litigants changes.
Consider the LNG terminals Germany rushed into operation after it stopped buying Russian pipeline gas. Every new LNG site—Wilhelmshaven, Lubmin, Mukran—has faced lawsuits from Deutsche Umwelthilfe (DUH), the country’s most aggressive green NGO, arguing over everything from power supply to antifouling chemicals. Even when courts uphold the projects, the process drags out, deadlines shift, and compliance costs rise.
For DUH, this is strategy. Lawfare isn’t about winning cases, it’s about stalling projects until investors run dry. Whether they win or not is beside the point. Delay alone is enough to drain capital, chill investment, and push risk premiums higher. With a constitutional judge like Kaufhold, green NGOs now have reason to believe more of their arguments will stick at the highest level. That makes not just delay, but permanent change, a plausible outcome.
Nevertheless, Germany’s tax-payer funded state media insist Kaufhold’s appointment is harmless because she joins the Second Senate, which doesn’t formally handle climate cases. But the Second Senate’s remit includes insurance law, civil law, tax law, and international law. Climate frames can penetrate any of these areas. Insurers face climate liability claims. Tax measures are framed as climate instruments. Even ordinary civil disputes can be repackaged as climate test cases.
And the division of labor between the two Senates is not fixed. The Court’s internal case allocation plan can be amended every year by its presidium and be reshuffled without difficulty, so long as the criteria are abstract and objective.
Kaufhold is just one of sixteen judges divided between the Court’s two Senates. So her influence can’t be that strong, right? But that argument downplays how Germany’s Constitutional Court evolves through the slow accretion of precedent and the long tenure of its members. A judge sits for twelve years. The danger isn’t her lone vote today. It’s the gradual tilt of the Court’s center of gravity toward positions that would once have been disqualifying.
Of course, the climate fervor may not last forever. Trump’s abrupt dismantling of ESG mandates has shown how fast the tide can turn. In the U.S., billions were wiped out of green portfolios almost overnight as subsidies were rolled back and mandates collapsed. Investors who thought sustainability was politically untouchable learned that once electoral winds shift, “green” can go from virtue to liability in a single quarter.
But the risk here is worse. When the backlash comes, it won’t just tear through subsidies and regulation. It will collide with a constitutional court whose vice president treats protest as democracy and climate exceptionalism as sacred principle. That combination all but guarantees gridlock: politics demanding rollback, courts standing in the way.
That uncertainty is the real danger. Capital doesn’t flee when rules are strict, it flees when rules are unpredictable. Gramsci once wrote: “The old world is dying, and the new world struggles to be born; now is the time of monsters.” Investors would be wise to ask whether Germany’s legal order is drifting into such a time.
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Someone should file a suit on behalf of coal or natural gas against an NGO, claiming that the plaintiff has a constitutional right to be extracted from the Earth and to travel.
We are witnessing the same process in France. Democracy is slowly but surely giving way to an unelected legal authority that claims to define what is good despite the will of the people and their elected representatives.
Recently, the idea have been floated of amending the Constitution to make any law considered to be "social progress" irrevocable whatever an elected future National Assembly would do about it... One can only imagine how far this could go.
And indeed, once in the constitution, anything can be interpreted the way the judges see it.
France motto being "Liberté, Egalité, Fraternité", helping illegal immigrants to enter and stay in France has been deemed constitutionally legal in the name of 'fraternity'.
And, despite it has been voted by the National Assembly, extending the detention period of the dangerous immigrants beyond the 90 days that are the normal rule here (when even European directives allow for 280 days !) as been deemed unconstitutional in the name of 'egality'.