Judicial Independence and Political Uncertainty: How the Risk of Override Affects the Court of Justice of the EU

Abstract

There is broad agreement in the literature that international courts (ICs) make decisions with bounded discretion in relation to state governments. However, the scope of this discretion, and the determinants of its boundaries, are highly contested. In particular, the central mechanism in separation-of-powers models of judicial politics—the possibility of legislative override—has raised controversy. We argue that the uncertainty that judges face regarding the political reactions to their decisions has important and undertheorized implications for their behavior. On the one hand, cautious judges are likely to be attentive to signals that contain information about the probability of an unfavorable override. On the other hand, misjudgments of the political risks are likely to be made. Thus, the possibility of override is a significant factor affecting judicial behavior, but it is also a fairly blunt mechanism for balancing the independence and accountability of courts. The empirical study focuses on the Court of Justice of the European Union (CJEU), which has long been at the center of theory development regarding the legalization of world politics and the rise of international courts. The results demonstrate a strong correlation between the CJEU's rulings and the political signals it receives, in a pattern that goes beyond legal merit, and that fits with the override mechanism. State governments are crucial parts of the broader audience that defines the political boundaries of judicial discretion.

Has the Court changed, or have the cases? The deservingness of litigants as an element in Court of Justice citizenship adjudication

“…Consistently with this, political scientists have shown that the judgments going against mobile citizens correspond to media attention for migration and benefit tourism (Blauberger et al 2018), suggesting that the Court 'reads the morning papers'. This fits a wider trend of political science research suggesting that the Court is responsive to external political pressures and moods (Kelemen 2012;Larsson and Naurin 2016;Martinsen 2015).…”

ECJ Judges read the morning papers. Explaining the turnaround of European citizenship jurisprudence

“…In terms of pure legal doctrine, most legal scholars observe a discontinuity in the Court's citizenship jurisprudence or even a reversal, which can hardly be brought in line with earlier, expansive rulings. The two most prominent arguments about political influence on the ECJ focus on EU governments' threats against unwarranted judicial activism -either the threat of non-compliance (Carrubba and Gabel 2015) or of legislative override (Larsson and Naurin 2016). We find plenty of evidence for both threats, but they do not correlate with the evolution of the Court's case law on EU citizenship.…”

“…The question of EU citizens' crossborder access to welfare benefits touches upon several core issues of integration, such as EU enlargement, citizens' mobility, the viability of national welfare systems, Eurosceptic parties addressing the topic in a welfare-chauvinist way, as well as citizens' eroding consent with the European integration project. At the same time, the scope of our analysis is clearly more limited than that of general accounts of the Court's jurisprudence (Larsson and Naurin 2016;Carrubba and Gabel 2015;Stone Sweet and Brunell 2012) and also more narrow than studies on the Court's entire citizenship case law (Šadl and Madsen 2016). Theoretically, our aim is not to generally test and refute any of the other explanations of Court behaviour discussed above, but to demonstrate the plausibility and the added-value of an account emphasizing the influence of the broader political context on the Court (for a similar view regarding the complementary character of different mechanisms of political influence, see Larsson and Naurin 2016: 385f.).…”

“…Moreover, political explanations focusing on member state "threats", i.e. threats of noncompliance (Carrubba and Gabel 2015) or legislative override (Larsson and Naurin 2016), are insufficient to account for the Court's turnaround. When applying these explanations to the ECJ's citizenship case law, we would expect being able to trace the Court's shift back to a rise in member states' opposition.…”

European Legal Integration: Towards a More Liberal Intergovernmentalist Approach

“…Research on the politics of the European legal order has of course proliferated since these early debates, bringing new attention to particular legal issue-areas, to quantitative analyses of ECJ judgments and of European law in national courts, and to indepth histories of the reception of European law in particular member states (recently, for instance, Kelemen and Pavone, 2018;Larsson and Naurin, 2016;Martinsen, 2015). Research on the politics of the European legal order has of course proliferated since these early debates, bringing new attention to particular legal issue-areas, to quantitative analyses of ECJ judgments and of European law in national courts, and to indepth histories of the reception of European law in particular member states (recently, for instance, Kelemen and Pavone, 2018;Larsson and Naurin, 2016;Martinsen, 2015).…”