Daniel Naurin, Institutionen för statsvetenskap, Göteborgs universitet
Judicial independence is a challenge for courts whose decisions have politically salient consequences. Several tools are available for legislatures and executives to engage in court curbing, including budgetary restrictions, impeachments, limiting jurisdiction or simply ignoring the Court’s decisions. Furthermore, legislators - or governments in the case of international courts - may override court decisions that run counter to their preferences by making new laws or negotiating changes to intergovernmental treaties.
In spite of these potentially powerful constraints some of the worlds most politically consequential courts – including the US Supreme Court and the European Court of Justice (ECJ) - seem to be acting with remarkable independence. An important reason for that, according to the attitudinal model, is that override of court decisions is a non-credible threat when the legislature or the contracting parties face high decision-making hurdles and heterogeneous preferences. The ECJ, in particular, has been portrayed as something of a runaway agent, promoting European legal integration and limiting the national sovereignty of the EU member states beyond their original intent.
We question the validity of this claim. Using previously unavailable data on EU governments’ briefs to the ECJ, and taking advantage of the variation in legislative procedures in the EU, we show that the ECJ judges follow closely the preferences of the EU governments, in a pattern predicted by the override mechanism.
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