Comparing Constitutional Review by the European Court of Justice and the U.S. Supreme Court

Separate and Unequal: Judicial Culture, Employment Qualifications and Muslim Headscarf Debates

“…Jurists following the classical-liberal model construe rights as essentially anti-governmental, often siding with individuals "in constitutional cases in which a citizen's negative right is being trampled upon by the state" ( [13], pp. 632-33).…”

“…The Supreme Court consists of nine justices who are appointed "for life"; in the USA, this occurs following nomination by the President and approval by the Senate-if one is lucky enough to survive a grueling set of highly politicized "litmus test" hearings. Applying a "dialogical, conversational, analogical and argumentative style" ( [13], p. 635), USSC tries to persuade a diverse citizenry that its majority verdicts are correct, even when the vote is 5-4. "Losers" find some vindication in dissenting opinions that can serve as a launching pad for future challenges as societal conditions change.…”

“…Rather, it seeks "to 'speak' the law to promote its own and the EU's authoritativeness, as if the latter were a 9 The justices came from Switzerland, Greece, France, Slovenia, Turkey, Belgium, Romania, the Czech Republic, the Ukraine, Croatia, Georgia, San Marino, Spain, Sweden, Armenia, the Netherlands and Norway. stable long-established republic when, in fact, it is an evolving work in progress without a fixed constitutional identity" ( [13], pp. 640-41).…”

“…The ECJ and the USSC evince striking parallels regarding equal opportunity/gender cases, despite their historical and structural differences, although space constraints precluded a direct comparison here [12,13]. The second part describes BFOQ criteria, as well as their significance for sex, national origin and religious discrimination.…”

Courts: An Effective Venue to Promote Government Transparency? The Case of the Court of Justice of the European Union

“…106 The same argument is made by Rosefeld who explains that 'The Court of Justice does not face 'the countermajoritarian difficulty problem' since there is less democracy at the European level.' 107 However, Hinarejos observed that the CJEU does not enjoy a high degree of social support 'in part because of the mentioned lack of social consensus as to the specific values that the Court is seen to be promoting.' 108 In addition, Komarek argued that 'the conflict 110 Eurolegalism captures a regulatory policy in which private enforcement of legal rights is done through the courts.…”