In the pre-COVID-19 world of November 2019, Germany’s Federal Constitutional Court added modestly to its social welfare jurisprudence, striking down the harshest penalties levied against recipients who did not meet employment or job seeking requirements imposed under the neoliberal reforms known as “Hartz IV.” The Court found that certain mandatory penalties—which reduced benefits for three months by 60% or 100% for second and third “violations” in a 12-month period, respectively—were disproportionate, and thus, not suitable, necessary, and reasonable.

In 2010, the Court had already found the Hartz IV restructuring of the social safety net to be incompatible with Germany’s standards providing for human dignity in its Basic Law. In a 2012 decision, the Court similarly held that the benefits provided by the Asylum Seekers Benefit Act failed to satisfy the fundamental right to a minimum standard of living with dignity, reaffirming that this right encompasses “both the physical existence of an individual and the possibility to maintain interpersonal relationships and a minimum of participation in social, cultural and political life.”

In principle, the Court’s 2010 and 2012 decisions represented a watershed, calling into question the sufficiency of social welfare benefits that did not enable a dignified and full life and were not adequately calculated with that standard in mind. In practice, the judgments seemed merely to tame a small portion of the worst excesses of neoliberalism.

For starters, the 2010 Court did not clearly prescribe higher social welfare benefits, preferring to defer to legislators. Years later, in 2014, the Court okayed an updated welfare scheme whose process for calculating benefits was deemed more defensible, even though it only actually increased benefits by a few Euros per month for some groups. And in its 2019 decision, even as the Court struck down the harshest social welfare penalties, it held the government could impose three-month 30% benefit reductions to enforce work and job seeking requirements.

In sum, though citing laudable economic, social, and cultural rights principles, the Court’s 2010 and subsequent decisions failed to effectively address the neoliberal logic creating holes in the social safety net. Instead, a few corrective patches were sewn in without questioning its overall weakness or rather low level.

That, at least, was the Court’s jurisprudential approach before the coronavirus pandemic, which has dramatically highlighted longstanding policies perpetuating inequality, impoverishment, and related ills. Will the judiciary rise to the scale of the human rights challenges posed by COVID-19—holding fellow state actors accountable to ensure a universal standard of living with dignity—or will deferential judicial review persist? At a time when so many healthcare providers face up to extraordinary need, will those charged with providing justice do the same?