The Contested Political Power of the European Court of Justice and the United States Supreme Court: A Comparative Analysis

This paper argues that a comparative analysis of the European Court of Justice (ECJ) and the US Supreme Court (SCOTUS) falls squarely within the domain of political science. I begin by highlighting the important policymaking role of both courts and argue that their lawmaking function is a result of the polycentric diffusion of political power that characterizes both the EU and the US systems of governance. I then move to consider and compare the modes of political power and contestation of ECJ and SCOTUS authority. I posit that the impact of the ECJ’s political power is vertically oriented (affecting the relationship between states and supranational EU institutions), whereas the SCOTUS’s authority is most consequential horizontally (affecting its relationship to the legislative and executive branches of federal government). For this reason, contestation of ECJ authority usually stems ‘from below’ (at the state/sub-state level), whereas resistance to SCOTUS jurisdiction originates laterally (at the federal level). I also argue that whereas opposition to the ECJ is structural in nature (and thus symptomatic of a broader resistance to the EU as a whole), opposition to the SCOTUS is primarily institutional (thereby not questioning the legitimacy of the US Constitution itself). I conclude by highlighting the implications of the foregoing argument for a broader comparative analysis of the US and EU.