AbstractThe European Union (EU) offers an example of deep judicialization, where highly salient political values are adjudicated on a regular basis. In such contexts, political attention may shift from national sovereignty costs (the vertical dimension) to distributive conflicts within and between states (the horizontal dimension), creating a multidimensional legal policy space. We discuss the implications of this setting for judicial behavior and argue that it may create both opportunities and pitfalls for international judges, depending on how the dimensions are related. If the institutional interests of judges in promoting international law systematically favor some states over others on the horizontal dimension, judicial activism is likely to provoke feedback effects in the form of severe legitimacy problems. If the dimensions are unrelated, on the other hand, adjudicators become further empowered. We draw on a large dataset to show how the Court of Justice of the EU has been able to use divisions between states on the left-right dimension to enhance the legitimacy and autonomy of European law.
AbstractThere 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.
We argue that courts may increase their autonomy and effectiveness by persuading governmental actors, who have powers over the societal impact of judicial decisions, of the legal quality of their rulings. This view combines a strategic perspective on judicial decision making with a conception of persuasion that allows courts to widen their zone of discretion. We support our argument with data from the European Union, where we find that the Court of Justice improves its legal justifications—by embedding its decisions in case law—when it faces a more adverse political environment. Our findings suggest both that the limits of judicial independence are set largely by political preferences, and that legal rhetoric may be an opportunity for courts to extend their room for maneuver. They also indicate that political audiences may indirectly influence the development of case law, by triggering courts to engage in precedent.