The Court of Justice of the European Union (CJEU) is probably the world’s most influential international court, functioning in many respects as a federal supreme court.
As of today, little research exists on how judges enter the Court and how its internal organization affects decision making. This project opens the black box of these decision-making processes to consider governments’ and judges’ strategic behavior.
I show that judges’ performance and governments’ political preferences are intertwined both when judges are appointed and when influence is distributed within the Court.
Judicial appointments to the CJEU
- “Shaping the Bench: The Effect of Ideology, Impact, and Information Quality on Judicial Reappointments” with Daniel Naurin presented at the ECPR Joint Sessions 2019 (Mons)
Courts’ institutional design has significant implications for judicial independence and accountability, particularly when terms are renewable. Policy-seeking selectors often consider judges’ past service to predict their future policy impact. However, the same judicial record may carry more or less weight in the assessment, depending on the court’s case-management process.
Drawing on original data on reappointments to the Court of Justice of the European Union, we show that reappointments are made based on both ideology and impact. Transparent, selective allocation of influential positions in the court favors the retention of high-impact judges, while non-selective allocations do not. Secret voting – conventionally seen as safeguarding judicial independence – also does not shield judges against ideological deselection. Our analysis unveils new insights into when judicial accountability incentivizes effort. It also challenges the prevailing belief that renewable terms decrease judicial independence, instead suggesting that selectors partially rely on evaluations by court members for reappointment decisions.
A draft version can be found here.
- “How do merit commissions affect judicial behavior? Evidence from the Court of Justice of the European Union” with Sivaram Cheruvu, Joshua Fjelstul, and Daniel Naurin presented at APSA 2022 (Montréal)
Governments create monitoring entities to ensure that policymakers are working effectively. Monitors’ control over retaining and selecting policymakers, however, may create incentives that lead to sub-optimal outcomes. One such entity is a merit commission (also known as a judicial council) that evaluates judges subject to retention and (or) selection. How do merit commissions affect judicial behavior? We construct a formal model arguing that lower competence incumbent judges only subject to merit retention will complete cases more quickly at the expense of quality opinion-writing, as their productivity is a signal of their effort investment to the commission. Conversely, judges subject to merit selection and subsequent retention will not make the same tradeoff, as the commission’s initial selection of them makes it more costly for the commission to negatively evaluate them upon retention. We provide evidence leveraging the Article 255 panel for (re)appointments to the Court of Justice of the European Union.
Strategic decision making in the CJEU
- “Leveling and Spotlighting: How International Courts Refract Private Litigation to Build Institutional Legitimacy” with Tommaso Pavone and Louisa Boulaziz presented at EUSA 2022 (Miami)
Private actors are increasingly turning to international courts (ICs). We argue that ICs can refract private litigation to build legitimacy and mitigate intergovernmental backlash. By leveling the odds for individuals and spotlighting their claims over those of more resourceful litigants, ICs cultivate civil society support and legitimate judicial policymaking in intergovernmental polities where individuals are disempowered. We evaluate this argument by scrutinizing the first IC with private access: the European Court of Justice (ECJ). We trace how ECJ judges privilege individuals in their advocacy and assess if they match words with deeds. Leveraging an original dataset, we find that the ECJ “levels”, supporting individual claims over businesses boasting larger and more experienced legal teams. The ECJ also “spotlights” its support for individuals through press releases that get amplified in law reviews. Our findings challenge the view that ICs build legitimacy by stealth and the ``haves’’ come out ahead in litigation.
A draft of the paper can be found here.
- Judicious judging: The effects of political division on decision making in the European Court of Justice with Urska Sadl presented at APSA 2022 (Montréal)
How do courts react to political debate? Their legitimacy hinges on their ability to uphold the law impervious to political pressure. The authority of the ruling follows from the court’s reputation as apolitical. Politicization – understood as salient questions that divide stakeholders – threatens to erode this image. It imposes conflicting demands: Courts can prove their worth by solving questions for which there is a demand for a legal solution, but they risk their reputation in a politically divided environment.
Literature on judicial independence focuses on direct and explicit threats issued by the political branch. Arguments of legislative override typically predict that political division empowers the judiciary. In contrast, we argue that courts are sensitive even to the potential eruption of conflict because they value their diffuse legitimacy. Effective judicial policy making is thus a question of strategic timing.
To test our theory, we study the European Court of Justice. Known as the “dark horse of integration”, it is an independent court with political sway. Yet political considerations profoundly affects its decision making. We draw on unprecedented data mapping out the legal ambit of all preliminary cases relating to the Free movement of people throughout the history. We find that the Court holds back on the legal ambit of rulings, preferring to bolster its institutional authority, in times of political division. Reversely, it broadens the ambit when salience is high and conflict low. Thus, when salience and division combine, they null each other out; leaving traces only in the decision-making process.
- Litigating in the European Court of Justice: Lawyers’ influence on supranational decision-making with Tommaso Pavone and Louisa Boulaziz presented at ECPR 2021 (zoom)
This paper assesses how private litigants’ propensity to win cases before international courts is conditioned by the quality of their legal counsel and by the constraints of intergovernmental politics. Building on legal mobilization and party capability theories, we argue that quality legal counsel bolsters a private party’s capacity to convey legal information to judges that is relevant to deciding the case in their favor. At the same time, we build on intergovernmentalist theories of international adjudication positing that judges will also be sensitive to political signals by national governments. As a result, we hypothesize that the influence of quality legal counsel on international judges is conditioned by the political support that member states’ express.
To assess these claims, we exploit an original dataset of parties and lawyers involved in disputes before the European Court of Justice (ECJ) – arguably the most successful and influential international court procuring access to private litigants. We find being represented by a lawyer bolsters the probability that litigants submit observations and win cases before the ECJ, yet this effect is the highest in the minority of cases where a majority of more member state governments intervene in favor of the applicant. We conclude by highlighting the necessity of combining theories of legal mobilization and intergovernmental politics in order to explain judicial decision-making in international courts.
Published work
If who makes decisions within courts matters for the outcome of cases and their reception, then studying how cases and judges are matched is essential to understanding judicial independence.
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“The CJEU Database Platform: Decisions and Decision-Makers” (2023) with Stein Arne Brekke, Joshua Fjelstul and Daniel Naurin. Journal of Law and Courts 0(0), 1-22.
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“Building legitimacy: strategic case allocations in the Court of Justice of the European Union” (2020) Journal of European Public Policy 27 (8), 1215-1235.
