Constitutional Political Economy, 14, 319 – 333, 2003.

# 2003 Kluwer Academic Publishers. Printed in The Netherlands.

The Independence of the Italian

Constitutional Court1
ALBERT BRETON albertbreton@sympatico.ca
Department of Economics, University of Toronto
Dipartimento di Economia, Università di Torino

ANGELA FRASCHINI angela.fraschini@sp.unipmn.it

Dipartimento di Politiche Pubbliche e Scelte Collettive, Università del Piemonte Orientale ‘‘Amedeo Avogadro’’
Dipartimento di Economia Pubblica e Territoriale, Università di Pavia

Abstract. It is often asserted that the Italian Constitutional Court is not independent of the Executive and
Legislative branches of the government in Rome. We offer a view of independence that is congruent with bodies
such as constitutional courts. We argue that the evidence, both qualitative and quantitative, however poor it may
be, indicates that the Italian Constitutional Court is as independent as any other corresponding constitutional or
supreme court of democratic countries. The evidence is not directly conclusive because the question, in the end, is
not whether the judges, one by one, are independent, but whether the Court is independent. The evidence we offer
pertains mostly to judges. If judges are independent, as that evidence seems to indicate, the Court is a fortiori
even more independent.

JEL classification: D73, H11, K40.

Keywords: independence, courts, judges, Italy.

1. Introduction

Some readers of earlier drafts of Breton and Fraschini (2003) have remarked that one of
the building-blocks on which the paper rests to argue that vertical competition among
governments located at different jurisdictional tiers in decentralized unitary states like Italy
– namely, an independent constitutional court – was not very robust because, they
affirmed, the Italian Constitutional Court was never and is still not independent of
parliament, political parties, politicians and/or of public sector bureaucrats. It is indeed
true that if the Court is not independent in some significant sense, the argument in Breton
and Fraschini (2003) would be sensibly weakened.
Though, ultimately, the matter of whether a court is independent or not is an empirical
one, there are conceptual issues which have to be sorted out and clarified if the correct
empirical questions are to be asked. It will turn out that in the process of specifying these
issues and confronting them with the institutional reality of any one particular court, a first
indication of whether independence obtains in practice emerges. Additional empirical tests
will either reinforce or weaken this first impression.
In the next Section, we examine in broad terms some of the conceptual issues mentioned
above. Then, in sections 3 and 4, we describe the institutional setting of the Italian
320 BRETON AND FRASCHINI

Constitutional Court and use that material to form a first impression as to whether the
Italian Constitutional Court is independent. In Section 5, some quantitative evidence
which we believe to be significant is brought to bear on the matter. Section 6 concludes the
paper.

2. Independence and Some of Its Corollaries

An institution – a constitutional or other court, a central bank, a constabulary force, a

grant-making body, and other like organizations – is independent when its decisions do
not favor the interests of some or all members of the institution’s personnel, or the interests
of particular individuals and/or groups whose interests are congruent with those of the
institution’s personnel, or the interests of individuals and/or groups who can immediately
and/or in the future ‘‘reward’’ the institution’s personnel. It is difficult, if not impossible, to
specify a priori the nature of the rewards which curtail or extinguish independence, except
to say that they can take the form of money, psychic emoluments, and/or compensation in
kind. Given this definition of independence, the fact that a court would reveal a degree of
political sensitivity vis-à-vis the political priors prevailing at a given historical moment is
neither relevant nor tractable.
It is important to keep in mind that independence is a variable that can be normalized to
vary between zero and one. In other words, independence is a matter of degree.
Recognizing that when the value of the variable is equal to one independence is complete,
and when equal to zero independence is absent, it is more appropriate to define the
independence variable a to vary between a* and a** with a* < 1 and a** > 0. The two
boundaries indicating that independence is never complete and never totally lacking.
There is one implication of the fact that independence is never perfect that must be
emphasized. Imperfection in this sense means that it is often – in effect, almost always –
difficult to establish whether independence exists in any particular singular instance. For
example, the fact that all the decisions of the United States Supreme Court in the matter of
whether George W. Bush or Al Gore had been elected President in the November 2000
election were strictly partisan and thus insured, given the political party affiliations of the
judges, that the Court would appoint Bush to the White House cannot be used to argue that
the US Supreme Court is not independent in all the cases brought before it – though it
certainly tells us that it is less than fully independent. In general, there are likely to be
anecdotes and stories which point to a lapse of independence by this or that body on one
issue or another. These anecdotes and stories do not demonstrate that the bodies are not
independent.
Making use of the definition of independence we have adopted, we inquire into the
nature of the institutions and/or mechanisms that act as barriers or constraints on the ability
of decision-makers to pursue their own personal interests and instead to make decisions
that serve the ‘‘common good’’. An illustration of such an institution is the so-called
‘‘blind trust’’, whereby the entire portfolio of assets of a decision-maker is assigned to an
individual, to a group of individuals, or to a corporate entity which manages the portfolio
without revealing anything about its selections to the decision-maker to whom it belongs
THE INDEPENDENCE OF THE ITALIAN CONSTITUTIONAL COURT 321

or to anyone that is in contact with the decision-maker. A blind trust thus insures that the
decisions by (say) politicians or bureaucrats which affect the value of assets will not be
influenced by the present or prospective value of the assets in the decision-maker’s
portfolio. A blind trust is therefore analogous to a Rawlsian (1971) ‘‘veil of ignorance’’
and as such serves to increase the independence of decision-makers by removing their
relevant personal interests from the picture.

3. Composition of the Court and Decision-Making Rules

One-third of the fifteen judges who make up the Italian Constitutional Court are elected by
the magistracy of the three highest Courts: the Supreme Court of Cassation (Corte
Suprema di Cassazione) elects three; the Council of State (Consiglio di Stato) elects
one; and the Court of Audit (Corte dei conti) elects one. Another third is elected by the two
Houses of Parliament (Camera dei Deputati and Senato) in joint session. A final third is
appointed by the President of the Republic – all fifteen to hold office for 9-year terms2.
None can be re-appointed. All judges are elected or appointed from among active or retired
magistrates, university professors (professori ordinari) of law and lawyers who have
exercised their profession for at least twenty years.
The five judges chosen by the magistracy are elected by simple majority. Let us consider
first the Court of Cassation which, as we noted, elects three judges. If after a first ballot, no
candidate has received a majority of the votes, the number of candidates for the second
ballot is reduced to the six that have received the largest number of votes on the first ballot
– six being equal to twice the number that have to be elected. In the case of the Council of
State and the Court of Audit that each elect only one judge (or the Court of Cassation when
it is selecting only one judge), after an unsuccessful first ballot, the voting is between the
two judges who have received the most votes.
For the five judges elected by Parliament, a qualified majority equal to two-third of the
total membership of the two houses is needed to elect a candidate. After three unsuccessful
ballots, the qualified majority is reduced to three-fifth of the total. From the Constitutional
Court’s inception in 19553, the list of candidates for election by Parliament has been made
up, by agreed convention, of two candidates chosen by the Christian Democratic Party
(DC), one by the Communist Party (PCI), one by the Socialist Party (PSI) and one by the
smaller parties. The convention had force. It meant that to obtain two-third or three-fifth of
the votes of parliamentarians, candidates had to be selected in such a way as to be
acceptable by members of different parties. With the introduction of majority rule in the
electoral system in 1993 – which has meant the creation of two coalitions or ‘‘poles’’ – the
old convention has disappeared. However, in view of the fact that the two-third and three-
fifth rules are still in force, it is generally not possible for the majority to elect five judges to
the Court without the support of some members of the second, non-governing coalition.
The appointment of five judges by the President of the Republic is the result of an
autonomous decision, even if it is preceded by informal consultations. After these
discussions, the President issues a decree which, if countersigned by the Prime Minister,
leads to the appointment of the judges. Had a proposal, made at the time of the Constituent
322 BRETON AND FRASCHINI

Assembly in 1946, that a list be submitted by the Minister of Justice to the President of the
Republic from which the latter would have chosen her or his five candidates been
implemented, the influence of the parliamentary majority would have been great. The
proposal did not come to pass and, as a consequence, the autonomy of the President in
appointing judges reinforces the overall independence of the Court (Paladin 1998).
The rules and procedures that determine the ultimate composition of the Constitutional
Court are such, it would seem, as to insure it a considerable degree of independence (from
the other branches of government). If it is true, as sometimes alleged, that often the judges
elected by the magistracy tend to come from the same benches as those voting instead of
from the broader allowed universe, it is also true that when the three sources of election
and appointment are taken together, the procedure in force will guarantee as much
independence as the procedure in force in any other democracy.
The above pertains to the independence of the Court which has to be distinguished from
the independence of the judges. We return to this point below but note immediately that
there will be a failure of independence only if the interests of judges are homogeneous –
all judges want for themselves the same benefits and all want for society the same
advantages or, when they are heterogeneous, a mechanism exists that can translate these
interests in the decisions of the Court.
In addition to the procedures regulating the election and appointment of judges, there are
a number of requirements and guarantees, in force in almost all democratic societies, that
exist to insure or protect the independence of judges. For example, constitutional judges
cannot be members of Parliament or of a regional Council, cannot practice law, cannot
exercise professional, commercial or industrial activities or be directors or auditors of for-
profit companies. They cannot act as magistrates or university professors or participate in
the activities of political parties.
Constitutional judges also enjoy the immunity granted to members of Parliament in that
they cannot be required to account for opinions expressed and votes cast in the exercise of
their function. Finally, in the absence of authorization from the Court itself, judges are
immune from personal search or domiciliary visits, may not be arrested and detained,
except to enforce a final sentence or if apprehended in the very act of committing a crime
for which arrest is mandatory. Similar authorization is required before judges may have
their conversation or communication intercepted or their mail impounded.
The decisions of the Constitutional Court are made by a ‘‘College of judges’’ of at least
eleven of the fifteen constitutional judges. The judges elect from among themselves a
President whose term of office is three years, with the possibility of re-appointment.4 The
College seeks unanimity in its opinions, but if that cannot be achieved, decisions are made
on the basis of simple majority. (A tie is broken by doubling the weight to the President’s
vote). Case can be discussed in a public hearing (udienza pubblica) or directly in chambers
(camera di consiglio). After a public hearing, the College of judges meets in chambers to
make a decision. In all cases, the Court’s decisions are written by a ‘‘judge reporter’’
(giudice relatore) chosen by the President. The reporter’s write-up is then submitted to the
College of judges, which criticizes and amends it. The final report, which can be very
different from the initial write-up of the judge reporter, forms the Court’s decision. All
decisions are therefore made by the College of judges.
THE INDEPENDENCE OF THE ITALIAN CONSTITUTIONAL COURT 323

Given that the President selects reporters (from among the fifteen judges) and given that
their reports, after the amendments made by the College of judges, are the only opinions of
the Court known to the public – no dissenting opinions are published it would appear
that the power of the President in shaping the decisions of the Court is considerable. It is,
however, in all likelihood considerably less than the power of chief justices in Canada, the
United States, and elsewhere who select subsets of three or five judges and assign them to
particular cases. In the Italian Constitutional Court, all the fifteen judges can decide,5
without hindrance, to sit on any case and no less than eleven are required for a quorum to
exist. The President has no say in the matter.

4. Failure of Judicial Independence

Let us assume that all the judges on a Court such as the Italian Constitutional Court pursue
their own individual interests in the sense that in coming to decisions on particular cases on
which they sit they only ask themselves what sort of decision could be advantageous to
themselves. Let us further assume that two parties come before the Italian Constitutional
Court (or any such court) seeking the resolution of a conflict whose basis is a constitutional
provision, and that the Court judges in favor of one of the parties. The self-interest of the
deciding judges will be realized only at one remove through the self-interest of the party in
favor of whom judgement has been rendered. Assume also that because of the appointment
procedures, the judges have different interests. In addition, suppose that in coming to a
decision, a significant fraction – eleven out of fifteen, let us say – of the judges must be
present. Finally, assume that decisions are arrived at on the basis of simple majority.
It would appear that in such a context the only way each judge can achieve his6 own
interest – and undermine the independence of the Court – is through log-rolling. It is
indeed difficult to see how court decisions made by judges whose preferences and interests
are different can come to serve these same individual interests and generate equilibrium
agreements except through some form of trading. The log-rolling mechanism can be either
static or dynamic. In its static formulation, it simply says that individual A will give his
support to individual B in deciding on a particular case X in exchange for B’s support on
case Y because A benefits personally more from Y and B from X. Trades such as these make
it possible for A and B to vote on X and Y in disregard of their convictions, conscience, or
the welfare of the society. In doing so, they undermine the independence of the Court by
countersigning judgements that benefit parties and interests they can exploit once their
term of office has come to an end7.
Given the relatively small number of judges and the limited number of cases on which
judgement must be rendered in any given period, it is likely that the log-rolling ‘‘market’’
will not clear – some potential gainers on one side of the market will not find counterparts
on the other side. However, when we pass from the static to the dynamic version of the
model, the possibility that all gains from trade will be exploited increases. What happens is
that A may support X (to the benefit of B) today for B’s support of Y (to the benefit of A)
tomorrow. Trading over time makes it possible to undermine the independence of the court
more than in the static version.
324 BRETON AND FRASCHINI

There are, however, severe limitations to trading over time. Suppose that judges are
appointed for life and that rewards are payable at the end of tenure only, then there will
be no log-rolling and, on that count, the independence of the court is increased, ceteris
paribus, to a maximum. If tenure is for a period less than life, the dynamic log-rolling
model is more complicated. To see this, let us assume that tenure is reduced from
twelve to nine years. That reduction has two effects. On the one hand, the period over
which trades can be effected is reduced and some gains from trade that would
otherwise have been garnered, remain unexploited. The spoils from the failure of
independence are diminished. On the other hand, because the period between the end of
tenure and full retirement from active life is lengthened, the present value of the spoil is
increased.
If the 1967 decision to modify the length of tenure of the Italian constitutional judges
had been to go from twelve years to life, the independence of the Court would have been
increased to a ceteris paribus maximum. However, going from twelve to nine years may
have reduced or increased the independence of the Court. Assuming that log-rolling takes
place and also that when elected and appointed judges are, in terms of normal life
expectancy forecasts, relatively ‘‘old’’, adding three years to the span of their life during
which they would benefit from the spoils ‘‘earned’’ while in office could be quite
insignificant. The independence of the Court could have been increased.
However, the main reason for concluding, at this point in our investigation, that the
Italian Constitutional Court is at least as independent as constitutional and supreme courts
in democracies everywhere is that log-rolling among judges is most surely very difficult,
if not impossible. The small number of judges that can be involved in trading, the place
and function of reporters in the decision-making process, the constraining role of
jurisprudence on decisions, the rule of simple majority, the anonymity in regards to the
division of votes, the uncertain character of the future spoils, and the unpredictable
tenancy of those who would deliver the spoils make log-rolling a mug’s game. As a
consequence, even if every single judge chose not to be independent, the Court itself
would still be independent.

5. Some Quantitative Evidence and Its Meaning

The foregoing argument and our conclusion that the Italian Constitutional Court is as
independent as any other corresponding constitutional and supreme court are based on a
consideration of the organization of the Court, of its rules and procedures, and of other
structural factors. In this section, we consider some more quantitative evidence. We look at
a few characteristics of the 70 judges who have been members of the Court since its
beginning and who had completed their mandate as of December 2002 – judges in office at
that date are therefore not included. The exclusion is justified by the fact that we are
considering such things as post-tenure appointments which could possibly be in the nature
of spoils from office and therefore not available during tenure.
The table details rank (president, vice-president and constitutional judges), the year of
birth, the year the candidate was sworn in as judge, the body by whom he8 was elected or
THE INDEPENDENCE OF THE ITALIAN CONSTITUTIONAL COURT 325

appointed, the political affiliation of the candidate, the year the mandate ended, the age of
the candidate at the end of his mandate, the year of death, the appointment after the
mandate, and the occupation prior to election or appointment.
The table tells us that 18 judges out of 70 (or 25.7 percent) were appointed at the end of
their tenure as judges to posts which some could deem to be spoils of office.9
Interestingly, 16 out of the 18 (88.9 percent) who where given appointments had been
President of the Court. The position of President is therefore important in respect of post-
tenure appointments. Out of a total of twenty-five Presidents from 1955 to 2002, sixteen
(or 64.0 percent) were appointed to a post at the end of their mandate. Only 5.6 percent
(1 out of 18) of the Vice-Presidents and 3.7 percent (1 out of 27) of the constitutional
judges received appointments. Seven of the nine Presidents who did not receive post-
mandate appointments were over 75 of age at the end of their tenure and two died during
their mandate.
The table reveals two other points of interest. First, out of the sixteen Presidents who
were given post-mandate appointments, fourteen had been University professors of law
and a few of these had also been practicing lawyers or active in other endeavors. We
incline to the view that University professors possibly have backgrounds and training that
make them ‘‘naturals’’ for further post-mandate appointments. If that is the case, the
appointments could not be considered, at least without additional evidence, to be spoils
of office.
Second, the average age of the former Presidents of the Court who received post-
mandate appointments is 64.0, while those who did not receive such appointments is
77.2 – a difference of some 13 years. Alone, this evidence would seem to indicate that
the post mandate appointments are in the nature of spoils from office as the time period
over which the present value of the post-mandate appointment’s perquisites are
calculated is fairly long. However, the age difference must be reckoned in a context
in which judges returning to their university positions would not receive the salary of a
professor of his standing, but continue to receive the salary and other fringe benefits of a
judge. We conclude that we cannot use this information pro or con the independence of
the Court.

6. Conclusion

We have argued that contrary to a widespread opinion, which one of the authors of this
paper first encountered in comments made on early drafts of Breton and Fraschini (2003),
to the effect that the Italian Constitutional Court is not independent of the Executive and
Legislative branches of government, the evidence, both qualitative and quantitative,
however poor it may be, indicates that the Court is as independent as any other
corresponding constitutional or supreme court of democratic countries.
We recognize that the evidence is not absolutely conclusive because the question, in the
end, is not whether the judges, one by one, are independent, but whether the Court is
independent. Our evidence pertains mostly to judges. If judges are independent, as the
evidence seems to indicate, the Court is a fortiori even more independent.
Table 1. Judges of the Italian Constitutional Court (1955 – 2002)10.
326
AGE AT
END
SWORN APPOINTED POLITICAL END OF OF DATE OF OCCUPATION
NAME BORN IN BY AFFILIATION11 TENURE TENURE DEATH12 AFTER TENURE PRIOR OCCUPATION

A) Presidents
DE NICOLA 1877 1955 President PLI 1957 80 1959 n.a. Lawyer, 1st President
(Gronchi) of the Republic
(1946 – 48)
AZZARITI 1881 1955 President Unknown13 1961 80 1961 Deceased during Pres. Court of
(Gronchi) mandate Cassation, M.
of Justice of the
military government
(1943 – 44)
CAPPI 1883 1955 Parliament DC 1963 80 1963 Deceased during Lawyer
mandate
AMBROSINI 1886 1955 Parliament DC 1967 81 1985 n.a. Professor, Member of the
Constituent Assembly
SANDULLI 1915 1957 President DC 1969 54 1984 President of Italian Professor, Lawyer
(Gronchi) Broadcast Television
(RAI) (1969),
Senator (1983)
BRANCA 1907 1959 Parliament PCI 1971 64 1987 Senator (1972) Professor, Lawyer
CHIARELLI 1904 1961 President Unknown 1973 69 1978 President and member Professor
(Gronchi) of Committees
BONIFACIO 1923 1963 Parliament DC 1975 52 1989 Minister of Justice Professor
(1976 – 79)
ROSSI 1900 1969 President Unknown 1978 78 1985 n.a. Professor, Member
(Saragat) of the Constituent
Assembly
BRETON AND FRASCHINI
AMADEI 1911 1972 Parliament PSI 1981 70 1997 n.a. Lawyer, Member of
the Constituent.
Assembly; Deputy
(1948 – 72),
Undersecretary
Ministry of Interior
(1963 – 68)
ELIA 1925 1976 Parliament DC 1985 60 – Minister (1993 – 94) Professor
Senator (1996)
PALADIN 1933 1977 President DC 1986 53 2000 Minister (1987, Professor
(Leone) 1993 – 94)
LA PERGOLA 1931 1978 President PSI 1987 56 – Minister(1987 – 89); Professor
(Leone) M. Europ. Parl.
(1989 – 94);
Judge of Europ.
Court of Justice
1994 and 1999 –
2000, General
Attorney of Europ.
C. of Justice
(1995 – 99)
SAJA 1915 1981 Magistracy 1990 75 1994 Pres. Anti-Trust Advocate Court
(1990 – 94) of Cassation
CONSO 1922 1982 President DC 1991 69 – Minister of Justice Professor
THE INDEPENDENCE OF THE ITALIAN CONSTITUTIONAL COURT

(Pertini) (1993 – 94)

GALLO 1914 1982 Parliament PSI 1991 77 2001 Pres. Co. Violence in Professor
Somalia (1997),
President of the
National Users’
Council (2000 – 01)
CORASANITI 1922 1983 Magistracy 1992 70 – Senator (1996), Advocate Court
President Eniq14 of Cassation
CASAVOLA 1931 1986 Parliament DC 1995 64 – Head Jury TV Professor
(1996 – 98)
(continued)
327
Table 1. continued.
328
AGE AT
END
SWORN APPOINTED POLITICAL END OF OF DATE OF OCCUPATION
NAME BORN IN BY AFFILIATION11 TENURE TENURE DEATH12 AFTER TENURE PRIOR OCCUPATION

BALDASSARRE 1940 1986 President PCI 1995 55 – Head Jury Professor

(Cossiga) self-discipline in
advertising (1996)15,
President of Italian
Broadcast Television
(RAI) (2002)
CAIANIELLO 1932 1986 Parliament PRI 1995 63 – Minister of Justice Professor, President
(1996) Council of State
FERRI 1920 1987 President PSDI 1996 76 – n.a. Lawyer, M. P.(1953 – 76),
(Cossiga) Minister of Industry
(June 1972 –
July 1973), M. of
European Parliament
(1979 – 84)
GRANATA 1926 1990 Magistracy 1999 73 – n.a. President Court
of Cassation
VASSALLI 1915 1991 President PSI 2000 85 – Trustee of the Lawyer, Professor, M.P.,
(Cossiga) International Senator, Minister
Committee of Justice (1987 – 91)
for the Righteous
of Armenians (2000)
MIRABELLI 1942 1991 Parliament DC 2000 58 – President of the Professor, Lawyer
National Users’
Council (2001)
RUPERTO 1925 1993 Magistracy 2002 77 _ n.a. Pres. Court
of Cassation
BRETON AND FRASCHINI
B) Vice-Presidents
FRAGALI 1897 1960 Magistracy 1972 75 1980 n.a. President Court
of Cassation
MORTATI 1891 1960 President DC 1972 81 1985 n.a. Professor, Member
(Gronchi) Constituent
Assembly
VERZI’ 1895 1962 Magistracy 1974 79 1981 n.a. President Court
of Cassation
BENEDETTI 1897 1963 Magistracy 1975 78 1978 n.a. President Court
of Accounts
OGGIONI 1892 1966 President Unknown 1978 86 1979 n.a. President Court
(Saragat) of Cassation
GIONFRIDA 1908 1972 Magistracy 1981 73 1995 n.a. President Court
of Cassation
VOLTERRA 1904 1973 President Unknown 1982 78 1987 n.a. Professor
(Leone)
DE STEFANO 1918 1975 Magistracy 1984 66 1985 n.a. President Court
of Accounts
ROEHRSSEN 1910 1977 Magistracy 1986 76 1987 n.a. President Council
of State
ANDRIOLI 1909 1978 President Unknown 1987 78 – n.a. Professor
(Pertini)
BORZELLINO 1923 1984 Magistracy 1993 70 – n.a. President Court
of Accounts
THE INDEPENDENCE OF THE ITALIAN CONSTITUTIONAL COURT

GRECO 1918 1984 Magistracy 1993 75 – n.a. President Court

of Cassation
PESCATORE 1916 1986 Magistracy 1995 79 – n.a. President Council
of State,
President Cassa
Mezzogiorno
SPAGNOLI 1926 1986 Parliament PCI 1995 69 – n.a. Lawyer,
M. P.(1963 – 83)
MENGONI 1922 1987 President DC 1996 74 2001 n.a. Professor
(Cossiga)
(continued)
329
Table 1. continued.
330
AGE AT
END
SWORN APPOINTED POLITICAL END OF OF DATE OF OCCUPATION
NAME BORN IN BY AFFILIATION11 TENURE TENURE DEATH12 AFTER TENURE PRIOR OCCUPATION

CHELI 1934 1987 President PSI 1996 62 – President of the Professor

(Cossiga) Committee for the
reform of the Ministry
for the cultural and
environmental goods
(1997). President of
the Communications
Authority (1998 – . . .)
GUIZZI 1933 1991 Parliament PSI 2000 67 – n.a. Professor, Senator
SANTOSUOSSO 1926 1992 Magistracy 2001 75 – n.a. President Court
of Cassation

C) Constitutional Judges
LAMPIS 1886 1955 Magistracy 1956 70 1956 Deceased during President Court
mandate of Cassation
PERASSI 1886 1955 President PRI 1960 74 1960 n.a. Professor, Deputy
(Gronchi) Constituent Assembly
BATTAGLINI 1887 1955 Magistracy 1960 73 1960 n.a. Lawyer of Cassation
COSATTI 1888 1955 Magistracy 1963 75 1963 n.a. President Court
of Accounts
GABRIELI 1888 1955 Magistracy 1962 74 1962 n.a. President Court
PANTALEO of Cassation
CAPOGRASSI 1889 1955 President DC 1956 67 1956 Deceased during Professor
(Gronchi) mandate
CASTELLI AVOLIO 1894 1955 President Unknown 1966 72 1966 n.a. President Council
(Gronchi) of State
PAPALDO 1899 1955 Magistracy 1967 68 1997 n.a. President Council
of State
BRETON AND FRASCHINI
BRACCI 1900 1955 Parliament PSI 1959 59 1959 n.a. Professor, Deputy
Constituent Assembly,
Minister of
Commerce (1946).
JAEGER 1903 1955 Parliament PCI 1967 64 1975 n.a. Professor, Lawyer
CASSANDRO 1913 1955 Parliament PLI 1967 54 1989 Member of Professor
Public Bodies’
Directorates
PETROCELLI 1892 1956 President Unknown 1968 76 1976 n.a. Professor
(Gronchi)
MANCA 1886 1956 Magistracy 1968 82 1973 n.a. General Attorney
Court of Cassation
DE MARCO 1902 1968 Magistracy 1977 75 1977 n.a. President Council
of State
ROCCHETTI 1905 1968 Parliament DC 1977 72 1989 n.a. Lawyer, M. P.
(1948 – 63)
CAPALOZZA 1908 1968 Parliament PCI 1977 69 1994 n.a. Lawyer, M.P.
(1948 – 63)
TRIMARCHI 1914 1968 Parliament PLI 1977 63 – n.a. Professor, M.P.
(1963 – 68)
CRISAFULLI 1910 1968 President PSI 1977 67 1986 n.a. Professor, Lawyer
(Saragat)
REALE N. 1901 1968 Magistracy 1977 76 1980 n.a. General Attorney
Court of Cassation
THE INDEPENDENCE OF THE ITALIAN CONSTITUTIONAL COURT

ASTUTI 1910 1973 President PLI 1980 70 1980 Deceased during Professor, Lawyer
(Leone) mandate
ROSSANO 1907 1974 Magistracy 1983 76 1995 n.a. General Attorney
Court of Cassation
REALE O. 1902 1977 Parliament PRI 1986 84 1988 n.a. Lawyer, M.
of Constituent.
Assembly, M.P.,
Secretary of PRI
BUCCIARELLI 1914 1977 Parliament DC 1986 72 1994 n.a. Councillor Court of
DUCCI Cassation, M. P.
(1948 – 76)
331

(continued)
Table 1. continued.
332
AGE AT
END
SWORN APPOINTED POLITICAL END OF OF DATE OF OCCUPATION
NAME BORN IN BY AFFILIATION11 TENURE TENURE DEATH12 AFTER TENURE PRIOR OCCUPATION

MALAGUGINI 1915 1977 Parliament PCI 1986 71 1988 n.a. Lawyer, M.P.
(1968 – 76)
MACCARONE 1909 1977 Magistracy 1984 75 1984 n.a. – President Court
of Cassation
FERRARI 1912 1980 President PSI 1987 75 1999 n.a. Professor
(Pertini)
DELL’ANDRO 1922 1985 Parliament DC 1990 68 1990 Deceased Professor, M. P.,
during mand. Undersecretary
(1968 – 79)
BRETON AND FRASCHINI
THE INDEPENDENCE OF THE ITALIAN CONSTITUTIONAL COURT 333

Notes

1. We would like to thank Giovanni Cordini and Joerg Luther for comments on an earlier draft. The usual
disclaimer applies.
2. Until 1967, constitutional judges were elected or appointed for 12-year terms.
3. The Constitution of 1948 created the Constitutional Court which, however, was given institutional existence
only in 1953 by an Act of Parliament which defined the composition of the Court and the procedures that
should guide its deliberations. By 1955, all fifteen judges had been elected or appointed and the Court began
sitting. The first judgement was rendered in 1956.
4. Historically, presidential mandates have lasted less than three years. During the Court’s 46 years, there have
been 25 presidents.
5. In effect, judges are obliged to sit on all cases, unless otherwise engaged.
6. To see that we are politically correct in writing ‘‘him’’ instead of the ‘‘her or him’’ we would normally have
used, see footnote 8.
7. In the case of the Italian Constitutional Court, it would be very difficult, indeed almost impossible, for judges
to be rewarded by successful litigants while they are still in office simply because the votes of the judges on
every case are secret. That is an implication of the fact that dissenting opinions are not published and, hence,
remain secret. Only in very few cases, and for very significative judgements, some judges made known their
opinions outside the Court so as to make their vote evident (Rodatà, 1999, 140).
8. In the entire history of the Constitutional Court, only one woman was appointed judge and that by President
Scalfaro in 2000. As Judge Fernanda Contri is still sitting on the bench, she is not included in the table.
9. The table provides data on appointments of former judges and, for obvious reasons, does not include spoils
possibly paid to friends, family, and other relatives. That part of the table should therefore be used with care.
10. Judges currently in office are not included (see text).
11. Christian Democrat – DC; Communist Party – PCI; Socialist Party – PSI; Liberal-PLI; Republican Party-PRI;
Social-Democratic Party-PSDI.
12. Up-to-date on December 2002.
13. During the fascist period he was president of the racial Court (Tribunale della razza).
14. Body for firms’ certification.
15. President for Italy of the British Bank ‘‘Greenwich National Westminster’’ (1998), President of the
Committee of Stock Exchange of Milan, President of SISAL S.p.A. (1999).

References

Breton, A., and Fraschini, A. (2003) ‘‘Vertical Competition in Unitary States: The Case of Italy.’’ Public Choice
114(1 – 2): 57 – 77.
Paladin, L. (1998) Diritto Costituzionale. Padova: Cedam.
Rawls, J. (1971) A Theory of Justice. Cambridge, MA: Harvard University Press.
Rodotà, C. (1999) Storia della Corte Costituzionale. Bari: Laterza.