The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐à‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Court's declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules kept politicians from sanctioning either national courts or the European Court for judicial activism. Legal doctrine became a form of institution‐building, and a mechanism to make international law enforceable was created, giving the European Court the ability to make unpopular decisions and to compel compliance with European law.     

Friends of the Court? Why EU governments file observations before the Court of Justice

The preliminary reference procedure under which the Court of Justice of the European Union (CJEU) responds to questions from national courts regarding the interpretation of EU law is a key mechanism in many accounts of the development of European integration and law. While the significance of the procedure has been broadly acknowledged, one aspect has been largely omitted: The opportunity for member state governments to submit their views (‘observations’) to the Court in ongoing cases. Previous research has shown that these observations matter for the Court's decisions, and thus that they are likely to have a significant impact on the course of European integration. Still, little is known about when and why member states decide to engage in the preliminary reference procedure by submitting observations. This article shows that there is significant variation, both between cases and between member states, in the number of observations filed. A theoretical argument is developed to explain this variation. Most importantly, a distinction is made between legal and political reasons for governments to get involved in the preliminary reference cases, and it is argued that both types of factors should be relevant. By matching empirical data from inter‐governmental negotiations on legislative acts in the Council of the EU with member states’ subsequent participation in the Court procedures, a research design is developed to test these arguments. It is found that the decision to submit observations can be tied both to concerns with the doctrinal development of EU law and to more immediate political preferences. The conclusion is that the legal (the CJEU) and political (the Council) arenas of the EU system are more interconnected than some of the previous literature would lead us to believe.     

Strategic interaction among courts within the preliminary reference process – Stage 1: National court preemptive opinions

Abstract.  While scholars today are well-acquainted with how the European Community preliminary reference process works, little research has been done to investigate strategic court interaction – that is, intentional, procedural court behaviour employed to influence the substantive direction of legal evolution, within that process. The present investigation, which is part of a larger project examining such court behaviour throughout the referral process, focuses on the initial stage: the decision to refer. Within that stage lies the opportunity for national courts to stack the interpretive deck for the entire decision-making process via a preemptive opinion, the submission of which is neither required, suggested nor prohibited by written procedural guidelines. It is assumed that courts are strategic institutions that seek to maximize their policy objectives, and therefore, national courts submit preemptive opinions to obtain that goal. Such strategic behaviour, however, is influenced by intervening factors – namely the acceptance of European Court of Justice intervention, national judicial procedure, issue complexity and individual court experience.     

Employer Liability for Employee Sexual Harassment: A Judicial Policy-Making Study

Since 1964 and 1972 when Congress passed key legislation concerning sex discrimination, the courts have been left to fashion policies on sexual harassment in employment. In 1998, the Supreme Court issued four major decisions in this area, one dealing with suits against school districts, one involving same-sex discrimination, and two pertaining to the application of common law to employer liability in sexual harassment cases. The ruling in the first case is at odds with the others, suggesting that Congress may need to intervene. The other three pose a series of complex issues that could benefit from congressional action and administrative guidance from the Equal Employment Opportunity Commission. The Court's rulings have answered some legal questions, but posed others that will produce extensive litigation in coming years.     

The politics of judicial discretion: Rethinking the interaction between national courts and the Eurpean court of justice

The recognition that courts play a significant role in the process of European integration has focused attention on the interaction between national judges and the European Court of Justice. The prevailing theoretical model of this interaction holds that a variety of incentives impel national judges to co‐operate with the ECJ by providing it with frequent preliminary references. This article tests the ability of the model to account for the behaviour of national courts during the period 1972–94. In assessing the utility of the model two central claims are made. First, that the model as currently constructed is incapable of explaining the patterns of references originating from various member states, particularly the consistent lack of references from British courts. Second, that the level of British references, and patterns of judicial co‐operation in general, can be better understood by questioning the model's core assumption ‐ that national judges face powerful incentives to refer to the ECJ. As a first step in this direction, the article examines how the discretion to make or withhold references bestows on national judges the power to hasten or retard the pace of integration as well as to influence specific policy outcomes.     

The weakness of strong policies and the strength of weak policies: Law,experimentalist governance,and supporting coalitions in European Union health care policy

The experience of European Union (EU) health care services policy shows the importance of supporting coalitions in any effort to effect policy change and the extent to which the presence or absence of such coalitions can qualify generalizations about policymaking. EU health care services law is substantively liberalizing and procedurally driven by the courts, with little legislative input. But the European Court of Justice (ECJ) has been much better at establishing an EU competency in law than in causing policy development in the EU or member states. Literature on courts helps to explain why: courts are most effective when they enjoy supporting coalitions and the ECJ does not have a significant supporting coalition for its liberalizing health care services policy. Based on interview data, this article argues that the hard law of health care services deregulation and the newer forms of health care governance, such as the Open Method of Coordination and the networks on rare diseases, depend on supporting coalitions in member states that are willing to litigate, lobby, budget, decide cases, and otherwise implement EU law and policy. Given the resistance that the Court has met in health care sectors, its overarching deregulatory approach might produce smaller effects than expected, and forms of experimentalist governance that are easy to deride might turn out to have supporting coalitions that make them unexpectedly effective.     

The German Federal Constitutional Court and European Judicial Politics

With its decision on the ratification of the Lisbon Treaty, the German Federal Constitutional Court (FCC) has handed over another landmark ruling on European integration. The ruling made Germany's ratification of the Treaty conditional upon the passage of a new law giving the Bundestag greater oversight of European affairs. This and the consequences of stronger parliamentary oversight for the German government and the way it conducts negotiations at European level have been the focus of most early comments on the decision. No less important, however, are the ruling's potential repercussions on European judicial politics. Coming after a series of highly controversial judgments by the European Court of Justice, the FCC's Lisbon decision is clearly meant as a warning to Brussels and, above all, Luxembourg. The decision could undermine the Court of Justice's authority and encourage non-compliance on the part of national courts, thus bringing about a constitutional crisis at European level. Alternatively, the decision may compel the Court of Justice to reconsider some of the most controversial aspects of its activist jurisprudence and to exert more restraint in the foreseeable future.     

Institutional reform and public attitudes toward EU decision making

In the face of the discourse about the democratic deficit and declining public support for the European Union (EU), institutionalist scholars have examined the roles of institutions in EU decision making and in particular the implications of the empowered European Parliament. Almost in isolation from this literature, prior research on public attitudes toward the EU has largely adopted utilitarian, identity and informational accounts that focus on individual-level attributes. By combining the insights from the institutional and behavioural literature, this article reports on a novel cross-national conjoint experiment designed to investigate multidimensionality of public attitudes by taking into account the specific roles of institutions and distinct stages in EU decision making. Analysing data from a large-scale experimental survey in 13 EU member states, the findings demonstrate how and to what extent the institutional design of EU decision making shapes public support. In particular, the study finds a general pattern of public consensus about preferred institutional reform regarding powers of proposal, adoption and voting among European citizens in different countries, but notable dissent about sanctioning powers. The results show that utilitarian and partisan considerations matter primarily for the sanctioning dimension in which many respondents in Austria, the Czech Republic, Denmark and Sweden prefer national courts to the Court of Justice of the EU.     

National Responses to European Court Jurisprudence

The power of the European Court of Justice (ECJ) to promote European integration through law has been broadly acknowledged, but the court’s domestic impact has received less attention and remains contested. In particular, the ambiguity of many ECJ judgments is said to have two opposed effects: According to one logic, legal ambiguity enables national policy-makers to contain the impact of court rulings, i.e. to ignore potentially broader policy implications. According to another logic, ambiguous case law provides opportunities for interested litigants to pressure national policy-makers into (anticipatory) adjustments. Which of these two logics prevails, it is argued, depends on the distribution of legal uncertainty costs between supporters and challengers of the regulatory status quo. The argument is supported by two in-depth case studies on the domestic responses to series of ECJ rulings concerning the free movement of capital (golden shares) and services (posted workers).     

Courts and the politics of secrecy: national security,human rights and the importance of supranational oversight

Abstract

The article examines the use of state secrecy in court litigation concerning alleged gross human rights violations committed in the struggle against terrorism, focusing specifically on cases of extraordinary rendition and comparing the performance of courts in the United States, in Italy and the European Court of Human Rights (ECtHR). The article explains that national courts have validated the assertion by national governments of the state secret privilege in litigation involving cases of extraordinary rendition, ensuring de facto immunity to individuals involved in gross human rights abuses. On the contrary, it underlines that the ECtHR has pierced the veil covering these ‘deep secrets’, undertaking a strict scrutiny of acts of extraordinary rendition to torture committed by governments in the name of national security. As the article argues, the success of the ECtHR can be explained by a number of reasons, including distance, time and institutional design. In conclusion, the case law of the ECtHR on secrecy and national security confirms the continuing importance of supranational courts as instruments of external oversight on the human rights practice of European states.     

Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court

Some scholars argue that the author of the majority opinion exercises the most influence over the Court's opinion-writing process and so can determine what becomes Court policy, at least within the limits of what some Court majority finds acceptable. Other students of the Court have suggested that the Court's median justice effectively dictates the content of the majority opinion: whatever policy the median justice most wants, she can get. We test these competing models with data on Supreme Court decision making during the Burger Court (1969–86). While we find substantial evidence for both models, the agenda control model gains greater support. This suggests that opinions on the Court on each case are driven, in general, by the interaction of three key variables: the policy preferences of the majority opinion author, the policy preferences of the median justice, and the location of the legal status quo .     

Guess What Happened on the Way to Revolution? Precursors to the Supreme Court's Federalism Revolution

In recent years, the Rehnquist Court has been accused of usheringin a "federalism revolution." The Court's decisions have beencontentious and often viewed as assertions of the Court's anti-majoritarianpower. However, these assessments misunderstand the role ofthe Court in the American political system. Not only are theCourt's recent decisions relatively modest departures from existingconstitutional doctrine, but its rediscovery of federalism follows,rather than leads, developments in the elected branches. Effortsto rehabilitate federalism as a political value began in theelected branches as early as the 1960s. By 1980, federalismhad become an important cleavage issue between the parties;Republicans advocated a form of "fixed federalism" while Democratsadvocated a form of "flexible federalism." Despite the desireof the Reagan and Bush administrations to use the judiciaryto advance the GOP's view of federalism, confirmation hearingsfor members of the Rehnquist Court demonstrate that Democratsin Congress paid little attention to federalism. Attitudes aboutfederalism thus made their way onto the Court without noticeand without challenge, and the sharp disagreements that emergedon the Court during the late-1990s mirror the same party cleavagesthat developed much earlier in the elected branches.     

Kampf um Souveränität?

The article documents a panel debate held at the Kiel congress of the German Political Science Association (DVPW) in September 2009. With its Lisbon judgment passed in June 2009, the German Federal Constitutional Court delivered a groundbreaking decision on Germany’s involvement in the European integration process. The Court ruled that the German accompanying law (Begleitgesetz) violated the national constitution because it did not guarantee sufficient parliamentary involvement. Furthermore, the Court announced its intention to intensify the constitutional control of the national applicability of European legal acts (the ultra vires control and the identity control). Stephan Leibfried, Marcus Höreth, Martin Höpner, Fritz W. Scharpf and Michael Zürn discuss the judgment with respect to its implications for the further integration process, for the national and supranational capacities to act, for the democratic quality in the European multilevel system and for political-economic problems.     

Abortion policy in the post-Webster age

Abortion policy will not change significantly as a result ofthe U.S. Supreme Court's decision in Webster v. ReproductiveHealth Services. The decision was not as expansive as generallyreported. Cases considered during the October 1989 term arenot likely to bring significant changes in abortion jurisprudence.A typology of post-Roe state legislative policymaking suggeststhat most states are unwilling to enact severe abortion restrictions.This is largely confirmed by the state legislative action thathas followed Webster. The Florida Supreme Court decision invalidatingthe state's parental-consent statute accentuates the importanceof state courts in setting abortion policy in the post-Websterperiod. In the highly charged political atmosphere followingWebster, state legislators have been reluctant to tackle abortion.These factors suggest that devolution of abortion policymakingauthority to states will not bring about fundamental changequickly.     

Judges as agents of social change: Can the courts break the affordable housing deadlock in metropolitan areas?

Abstract

Nowhere is the chasm between the races more apparent than in the physical division of metropolitan areas between inner‐city poverty and suburban affluence. Thus far, public policy efforts to introduce metropolitan perspectives into local land use regulations have been unsuccessful. The series of New Jersey Mount Laurel decisions lays out a possible path for introducing comprehensive regional planning by deploying the constitutional power of state courts. Relying on the allied professions of economics and city planning, the New Jersey Supreme Court eliminated the legal barriers to affordable housing in the suburbs.

Questions have been raised over courts’ ability to reform local government powers, but many traditional objections to the effectiveness of judicial reform seem to have been overcome in the New Jersey litigations and legislations. State courts can play an indispensable role in solving regional land use problems if they secure the support of community leadership groups.     

The Institutionalization of the U.S. Supreme Court

In pursuing their goals, members of the U.S. Supreme Court areaffected by their institutional setting. How has that institutionalenvironment changed over time and what have been the politicalconsequences of those changes? Despite considerable analysisof the institutional dynamics of legislatures and executives,political scientists have been slow to bring time series techniquesto the study of the Supreme Court, and as a result much lessis known about its evolutionary path. Measuring a variety oforganizational characteristics, I construct an index of theinstitutionalization of the Supreme Court from 1790 to 1996.This indicator suggests that the integration of the Court intothe system of federal policy making has better enabled the justicesto satisfy their objectives. To demonstrate this empirically,I test a series of error correction models of judicial influence,each of which confirms that the nature of the Supreme Court'scharacter has had considerable implications for the scope ofthe justices' legal and political impact. These results underscorethe need for judicial scholars to examine the Court's policymaking in longitudinal perspective.     

REMEDIES WITHOUT RIGHTS? THE LEGAL BASIS OF BROAD-GAUGE DECREES IN PRISON CONDITIONS CASES

This paper examines the legal basis for "broad-gauge" or "administrative intervention" decrees in the sort of lawsuits which have come to be known as extended impact cases, polycentric disputes, or public law litigation. It concludes that equity provides an adequate basis for such decrees and that the Supreme Court's recent use of a narrower view of judicial equity powers, sometimes called the tailoring principle, is not compelled by precedent. The paper further argues that the Supreme Court appears headed in the direction of using the tailoring principle in prison conditions cases (e.g., Bell v. Wolfish ), although some support for a broader view of judicial equity power is found in Hutto v. Finney .     

National Constitutional Courts,the Court of Justice and the Protection of Fundamental Rights in a Post-Charter Landscape

This article critically evaluates the possible impact of the Charter on the relationship between the Court of Justice of the European Union (CJEU) and national constitutional courts. While it is premature to provide a definitive assessment of the kind of collaboration that these courts will develop, it is crucial to identify a number of features of the new landscape that will influence the direction in which the relationship between the CJEU and constitutional courts will evolve. This article discusses several reasons that may result in better or a higher number of judicial interactions, as well as factors that may create tension or cause problems in the relationship between the CJEU and national constitutional courts. As such, it offers a framework that may help us to understand future post-Charter judgments by these courts setting out how they conceive their engagement with their counterpart(s) on fundamental rights issues.     

Judicial Review and the Supreme Court of Washington, 1890-1986

The literature on judicial review by state supreme courts suggeststhat from the beginnings of the republic until today, statejudicial review has shifted generally from what can be calleda restraintist departmentalism to an activist "new federalism."Since statehood in 1889, the Supreme Court of Washington hasreacted to constitutional challenges in much the same manneras the high courts of other states. Recently, however, Washington'sjurists have forged an independent course by applying the morerestrictive aspects of the state constitution to private andgovernmental intrusions into personal lives rather than relyingon the guidelines provided by the federal Constitution and theU.S. Supreme Court. The nature of this second "Golden Age" ofstate judicial review, because of its effect on federalism ratherthan the separation of powers, requires appraisal from a newperspective.     

The judicialisation of EMU politics: Resistance to the EU's new economic governance mechanisms at the domestic level

Courts are increasingly asked to deal with fundamental political disagreements in liberal democracies. Because of its political salience and the extent of its consequences, the crisis of the Economic and Monetary Union (EMU) has exposed such fundamental disagreements between and within its member states, which numerous plaintiffs have brought before domestic courts and the Court of Justice of the European Union (CJEU). This article analyses this judicialisation of the EMU crisis. Using a database on lawsuits introduced in all 28 member states with regard to crisis measures and the new EMU governance mechanisms introduced since 2010, the authors study which actors use the courts and under which circumstances. Based on a combination of judicialisation and political economy approaches, the article develops a series of assumptions on actors’ motivations in order to understand the reasons for judicialisation in debtor and creditor countries.