Comparing constitutional review by the European Court of Justice and the U.S. Supreme Court

Abstract

Although neither is a constitutional court, both the U.S. Supreme Court and the European Court of Justice engage in extensive constitutional review. While the European Union does not have a constitution, the European Court often engages in what amounts functionally to constitutional review, particularly in relation to the EU's quasi-federal structure. This article, comparing the two courts as constitutional adjudicators, explores the differences in style and rhetoric between the two, locating each in their respective institutional and cultural settings. It compares their approaches to interpretation as well as the source and scope of their legitimacy. Both courts have engaged in the constitutionalization of politics and seem at risk of politicizing their constitutions. The threats to their respective powers and legitimacy are, however, different. The U.S. Supreme Court is vulnerable to internal forces—the President, Congress, and national public opinion—whereas the European Court is mainly vulnerable to external forces—the member states and, particularly, the latter's constitutional courts.

1. Introduction

Neither the European Court of Justice (ECJ) nor the United States Supreme Court is a constitutional court, yet they both engage in constitutional review. These two courts are similar in one key respect: they are both nonspecialized courts of general jurisdiction. The ECJ handles many different kinds of matters spread over a wide range of specialized areas,¹ as does the Supreme Court.² Moreover, the two courts function both as courts of first instance and as courts of last instance.³

Both are courts of general jurisdiction, which is typical in common law countries, but not in the civil law countries of continental Europe.⁴ Moreover, although both courts engage in extensive constitutional review, neither is unmistakably established as the authoritative constitutional interpreter of the legal system that enshrines it as its highest court.⁵ There is, however, a major difference between the two. The Supreme Court is a national court operating in a country with a written constitution, whereas the ECJ is a transnational court operating in a legal context that lacks a functioning written constitution equivalent to the U.S. Constitution.⁶

This difference between the courts raises two threshold questions that must be answered before one can hope to make any comparison that would be cogent regarding constitutional review. First, can the ECJ, as a transnational court operating within a legal regime such as that of the European Union (EU), meaningfully engage in constitutional review? And second, can one plausibly maintain that the EU has a constitution, which the ECJ can interpret and apply, given that the European treaty to establish a constitution is not in force and that it, or anything closely resembling it, may never be?

Section 2 below deals with these two threshold questions and explores how the two courts may be regarded as comparable from the standpoint of constitutional review. Section 3 examines how each of these courts confronts and manages constitutional review. Section 4 focuses on the respective sources of, and threats to, the legitimacy of constitutional adjudication for each of the two courts. Section 5 provides an account of the contrasting styles and rhetoric of the respective constitutional judgments and opinions of the ECJ and the Supreme Court. Finally, section 6 draws a comparison between the respective canons of constitutional interpretation used by the ECJ and the Supreme Court, leading to an assessment of how the ECJ as a constitutional adjudicator within the EU fares in relation to the Supreme Court as its U.S. counterpart.

2. Are the ECJ and the U.S. Supreme Court comparable from the standpoint of constitutional review?

2.1 Transnational versus national court

The first threshold question—whether a transnational court can function as a constitutional court—is inextricably linked, ultimately, to the second threshold question: Can the treaty-based EU reasonably be regarded as functioning within the bounds of a constitutional regime, notwithstanding the fact that it presently lacks a formal constitution. Nevertheless, these two threshold questions may initially be dealt with separately.

If one compares the ECJ and the Supreme Court, on the one hand, with the German Constitutional Court, on the other, one notices that neither of the former is explicitly empowered to engage in authoritative constitutional review whereas the latter is.⁷ Moreover, the German Constitutional Court is designated by the Basic Law as the authoritative interpreter of that country's Constitution,⁸ a status that, obviously, neither the U.S. Supreme Court nor the ECJ can claim confidently.

The Supreme Court has maintained its right to engage in constitutional review since its landmark 1803 decision in Marbury v. Madison;⁹ its legitimacy as constitutional adjudicator has been accepted generally ever since. Its claims to being the authoritative interpreter of the U.S. Constitution,¹⁰ however, are by no means uncontested.¹¹ In Marbury, the Supreme Court declared that the U.S Constitution is law, that it is superior to other law, that infraconstitutional laws must yield to the Constitution when the two are in conflict, and that the Supreme Court is empowered to interpret laws and to vindicate the superiority of the Constitution in the course of adjudicating legal disputes in “cases or controversies.” No one contests that Supreme Court interpretations of the Constitution and invalidations of inconsistent infraconstitutional law are authoritative and binding on the parties to “cases or controversies” standing before it. What is contested—and that only intermittently and with varying degrees of zeal—is the erga omnes effect of Supreme Court constitutional decisions. De jure, Supreme Court constitutional adjudications do not have erga omnes effects though, in most cases, de facto they do.

In contrast to the Supreme Court, the ECJ is the creature of a treaty rather than a constitution, and its mission is to interpret the EU treaties and the laws issued from, or made pursuant to them.¹² In the broadest sense, treaties are typically concluded in order to regulate the external relations between two or more sovereigns, whereas constitutions typically regulate internal matters within a unified whole, most commonly a nation-state.¹³ Thus, for example, a free-trade treaty between two nation-states usually creates legal obligations that may well require judicial interpretation and adjudication, but the latter activity is clearly distinguishable from constitutional review.¹⁴ From a formal standpoint, therefore, the ECJ appears to have no legitimate constitutional review function and does not engage in constitutional interpretation.

From a practical and functional standpoint, however, matters seem quite different. Many contemporary treaties, such as the European Convention on Human Rights (ECHR), deal with subjects that are much more “internal” than ”external” and have a far more extensive impact on the relationship between a citizen and her own state than on the relationships among states. Consistent with this, moreover, the European Court of Human Rights (ECtHR), while a transnational court interpreting and applying ECHR treaty-based rights, engages substantively in something very much akin to the adjudication of constitutional rights.¹⁵ In the context of the EU, the relevant treaties also deal with internal as well as external matters in relation to the member states, though arguably their internal impact is less comprehensive than that of the ECHR. Nevertheless, early in its tenure the ECJ itself played a key role in widening and deepening the internal reach of the treaty-based supranational European order. Indeed, in its landmark 1963 decision in Van Gend en Loos,¹⁶ the ECJ held that Community law has direct effect in conferring rights on citizens against their own states for the latter's violations of certain of their treaty-based obligations.

Although the EU is not a federation, like the United States or Germany, it does possess certain institutional features commonly found in federal systems. This is the case not only with respect to direct effect but also with respect to EU regulations, which operate within member states much as U.S. federal law does within the fifty U.S. states, as well as EU directives, which require member states to undertake internal implementation or risk becoming liable to citizens for injuries caused by their failure to do so.¹⁷ Accordingly, like the Supreme Court and other courts that engage in constitutional review in federal states, the ECJ adjudicates issues pertaining to the vertical division of powers. Such vertical division may be treaty based, as in the EU, or established by a constitution, as in federal nation-states. From a functional standpoint, however, the role of the ECJ in dealing with issues involving the vertical division of powers is analogous to that of the Supreme Court.

There is another important area of constitutional adjudication in the context of nation-states, namely, that of the horizontal separation of powers, which also has its analogous treaty-based equivalent in the EU. The Supreme Court has thus adjudicated controversies concerning the proper apportionment of powers among the three separate and coequal branches of the U.S. federal government. For example, it held that President Truman usurped legislative power when he seized privately owned steel mills without congressional authorization during the Korean War.¹⁸ Similarly, the ECJ has jurisdiction to adjudicate horizontal separation-of-powers controversies between the European Council, the European Commission, and the European Parliament.¹⁹ Consistent with this, the ECJ has held, for example, that the European Parliament can bring an action for annulment against the Council or the Commission provided the Parliament is acting to safeguard its prerogatives.²⁰

In short, given that the ECJ performs much the same function as the Supreme Court with respect to issues regarding the vertical and horizontal division of powers, it does not appear unsuited to the task of constitutional adjudication. Thus, neither its status as a transnational court nor its operating in a treaty-based rather than a constitution-based environment seems to present any serious impediment to its functioning as a court that engages in constitutional adjudication in a federal system.

2.2 Does the EU have a constitution if the European constitutional treaty is not in force?

From a formal standpoint, there are enough provisions within the various EU treaties to make up a basic constitutional framework for the Union. Furthermore, consistent with the discussion above, from a substantive and functional perspective, through direct effect and internal impact within the member states, EU treaties and laws—as well as the jurisprudence of the ECJ—furnish an array of written and unwritten, judicially sanctioned norms sufficient to delineate a workable division of powers, both vertical and horizontal. In these areas, the EU pretty much has the equivalent of a complex and sophisticated constitutional order comparable to that of a federal nation-state like the U.S. or Germany.²¹

In addition to dealing with the separation or limitation of governmental powers, the modern constitutions operative within democratic nation-states both guarantee observance of the rule of law and afford protection to fundamental rights.²² Leaving to one side the proposed European treaty-constitution, which remains unratified, the EU treaties do not provide an explicit set of rule-of-law and fundamental-rights protections.²³ The ECJ, however, has inferred requirements for such protections in its interpretations of the relevant treaties. The ECJ has declared that the “European Economic Community is a community based on the rule of law.”²⁴ The ECJ has also made clear that “fundamental rights form an integral part of the general principles of law,” which it secures.²⁵ And, for that purpose, the ECJ “draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights … of which [the member states] are signatories. The [ECHR] … has special significance in that respect.”²⁶

Are the rule-of-law and fundamental-rights constraints recognized by the ECJ analogous to equivalent constraints imposed by the U.S. Constitution on the Supreme Court? The answer to this question depends primarily on two variables: (a) the bindingness of an authoritative constitutional text, and (b) the need for a commonly shared identity in order to elaborate a cogent constitutional jurisprudence regarding fundamental rights.

There is no current equivalent to the U.S. Bill of Rights²⁷ in the EU. Thus, Supreme Court interpretations regarding fundamental constitutional rights are based on binding constitutional texts, whereas equivalent ECJ interpretations are not. Upon closer examination, however, this difference does not seem that significant. Indeed, many of the provisions of the U.S. Bill of Rights are highly general and abstract, leaving room for a much-contested jurisprudence of unenumerated rights generated by the Supreme Court. For example, there is no explicit textual support for the privacy²⁸ or abortion²⁹ rights recognized by the Supreme Court. More generally, with the passage of time, it may seem inevitable that there will be gaps between the “written” constitution and the “living” constitution.³⁰

It may be objected that there is a considerable difference between departure from a constitutional text and the postulation of constitutional rights in the absence of such a text. In the former situation, arguably, there is, at most, mere interpretive excess; in the latter, an unwarranted judicial creation of constitutional norms ex nihilo. Upon reflection, however, if the legitimacy of a constitutional text is founded on a broad-based consensus regarding the constituent power of its authors, then unmistakable departures from the acceptable bounds of textual interpretation would seem as objectionable as the postulation of constitutional norms without a constitutional text.³¹

Short of direct contradiction of the relevant constitutional texts or of the operative constitutional framework (the constituent treaties, in the case of the EU), there seems to be little difference between clear departure from a constitutional text and postulation of a constitutional norm in the absence of a written text. What seems more important is that a postulated constitutional norm be backed by a shared constitutional identity. For example, the Supreme Court's constitutionalization of an abortion right without explicit textual support has been highly controversial since the U.S. is sharply divided over whether abortion should be constitutionally protected, left to infraconstitutional majoritarian regulation, or constitutionally prohibited. In contrast, in a country with a broad consensus that a woman's basic liberty and equality require that she be free to decide whether or not to have an abortion, the constitutionalization of abortion by judicial fiat would be solidly grounded in the polity's constitutional identity even absent a written constitution.

In its landmark decision in the Migdal case,³² Israel's Supreme Court advanced impressive arguments for deriving constitutional fundamental rights in the absence of a written constitution, as well as for justifying constitutional review in relation to such rights. The Court's arguments, scaled to the nation-state, were based on the purportedly uniform needs of contemporary rule-of-law polities, combined with an appeal to the constitutional identity of the Israeli people. The core of the Court's argument was that a rule-of-law democracy needs a coherent constitutional framework that is judicially interpreted, adapted, and applied; and that the fundamental beliefs and self-image of Israeli society require instituting special protection of fundamental rights to freedom and human dignity.³³

Whether the reasoning of Israel's Supreme Court can be made relevant in a supranational setting such as that of the EU depends, to an important extent, on the vexing question of whether the EU has or can develop a genuine constitutional identity.³⁴ There are serious doubts as to whether the EU can acquire a sufficiently elaborated and commonly shared constitutional identity such that it will allow for abstract fundamental rights on the order of those propounded by the Supreme Court and other nation-state courts. Nonetheless, by drawing on the common constitutional traditions of the member states and on the ECHR and on its judicial interpretation by the ECtHR, the ECJ can anchor its interpretive constitutional mission in a workable and sufficiently concrete frame of reference.

Consistent with the preceding analysis, and even though it lacks both a written constitution concerning fundamental rights and a sufficient, positive constitutional identity, the ECJ still possesses the requisite minimum to function in the realm of constitutional adjudication, much as the U.S. Supreme Court does. If, to this, one adds the greater congruity between the two courts with respect to division-of-powers adjudication, then it should become clear that comparison of the courts might be quite fruitful.

3. Confronting and managing constitutional review

Both the ECJ and the Supreme Court are nonspecialized courts that decide constitutional cases, among others.³⁵ They are also courts of last instance, though the ECJ is also, in most constitutional cases, a court of first instance.³⁶ Finally, the decisions of both courts are binding on other courts and all institutional actors within their constitutional domains and can only be overruled by constitutional amendment or its equivalent—in the EU, by treaty revision. The bindingness of the two courts' decisions does not seem automatic or obvious given the respective political and institutional framework in which each of these courts is embedded. Thus, for example, in the nineteenth century, state supreme courts disputed the bindingness of Supreme Court interpretations of the U.S. Constitution or of the federal law with which such state courts disagreed.³⁷ The Supreme Court rejected the state courts' position, but challenges by various states continued for many years. Similar challenges were launched anew, in the middle of the twentieth century, after the Supreme Court held state-mandated racial segregation unconstitutional³⁸ in its landmark Brown v. Board of Education decision.³⁹

With regard to the bindingness of its decisions, the ECJ would seem prima facie even more vulnerable than the Supreme Court in that it depends on member state courts to follow its decisions in preliminary reference cases. Indeed, whereas the U.S. federal government was able to send federal marshals to force resisting state officials to implement Supreme Court desegregation decisions,⁴⁰ nothing comparable exists within the EU to back up the ECJ, if needed. Nevertheless, national judges thus far have accepted ECJ decisions in an exercise of judicial cooperation that has been characterized as “quite extraordinary.”⁴¹ Theories on why this is so abound.⁴² What is most important in terms of a comparison between the ECJ and the Supreme Court, however, is that both may be vulnerable in terms of the incontestability of their decisions and that, in spite of this, their respective supremacy has not come under serious challenges since the 1960s, when the first preliminary reference by a member state court reached the ECJ.⁴³

There is, however, a big difference in the degree of control over constitutional review that each court exercises, and this difference relates both to the size of—and control over—the docket. This difference extends to all cases, although it has special repercussions in constitutional ones. Overall, the ECJ decides more than five hundred cases per year,⁴⁴ while the Supreme Court decides about eighty.⁴⁵ Moreover, the Supreme Court has virtually complete discretion over the selection of cases before it for adjudication. In contrast, the ECJ has very little discretion with constitutional cases, such as those referred to it by national judges. Additionally, not only does the Supreme Court pick and choose which cases to adjudicate, it also has the benefit of the many judicial decisions by lower federal courts and/or state courts on the constitutional issues it must decide. In contrast, as a court of first instance in most cases, the ECJ cannot count on the experience of other courts in interpreting the relevant EU law's provisions.

The ability of the Supreme Court to pick and choose among the constitutional cases before it on appeal, whether from lower federal courts or from the highest state courts, gives it two important advantages. First, it can defer deciding politically explosive issues until after strong passions have cooled off; and, second, it can wait to assess how conflicting decisions on the same constitutional issue by different lower courts fare from an empirical and a pragmatic standpoint before stepping in to settle definitively the issue for the polity as a whole.⁴⁶ To illustrate the first advantage, one can imagine that a constitutional dispute—regarding the legislative reapportionment of a state's electoral districts—taking place against the background of a highly contested election, could exacerbate deep partisan rifts. In such a case, a nearly contemporaneous Supreme Court decision would almost surely add fuel to the fire and unwittingly draw the Supreme Court into a highly undesirable partisan conflict.⁴⁷

The second advantage is one that looms large in the context of a common law judicial system. Common law adjudication is understood as an inductive, incremental, and empirical process in which the more cases and the more experience a judge has to draw on the greater the probability that she will arrive at a better decision. This stands in stark contrast to the paradigmatic model of adjudication issuing from the civil law tradition, which conceives of the judicial task as a deductive one involving the syllogistic application of a general rule—embodied in a code—to a set of particular facts.⁴⁸ Consistent with its common law approach, the Supreme Court has drawn on the empirical fate of constitutional doctrines, as applied in numerous precedents, either to adopt, reinforce, or abandon them if they prove overly burdensome or unworkable.⁴⁹

The ECJ does not appear to have anything akin to the advantages enjoyed by the Supreme Court. The lack of the first of these, however, has not visibly hurt the ECJ, given its success with the national judges who refer to it questions of EU law interpretation.⁵⁰ This may be due to the special skills and the care with which these referrals are handled by the judges of the ECJ, or to the fact that ECJ decisions in preliminary reference cases foster strong professional bonds between the ECJ and national judges.⁵¹ As will be discussed more fully below,⁵² there has been one area of greater tension and that is in the relationship between the ECJ and certain member state constitutional courts. That tension, however, seems to have much more to do with the constitutional framework of the EU—specifically, its being a kind of hybrid between a federation and a confederation—and with substantive constitutional issues, than with the political passions of the moment.

Because its constitutional jurisprudence comes principally from its preliminary reference decisions, the ECJ cannot, for the most part, avail itself of the Supreme Court's second advantage. The ECJ must render constitutional decisions without the benefit of lower court determinations, which it could critically examine, before definitively settling an issue. Is the lack of this second advantage, however, an actual disadvantage?

The answer to this question depends on whether constitutional adjudication by the ECJ should be regarded as fitting better within the civil law paradigm or within its common law counterpart. Unlike the incremental and inductive common law approach, civil law adjudication is supposed to involve a deductive process whereby a general, code-based rule is applied to a particular set of facts syllogistically.⁵³ Consistent with this, a civil law court seems much less likely to benefit from the experience of other courts than a common law court. From the standpoint of its composition, the ECJ is a civil law court because none of its judges, until the U.K. and Ireland became members, came from a common law tradition and because the vast majority of its judges continues to come from civil law jurisdictions. Viewed in the light of its constitutional jurisprudence, however, the ECJ—like, for that matter, member state constitutional courts such as Germany's—is increasingly functioning more like a common law court.⁵⁴ This is due, in part, to the generality of constitutional norms, and, in part, to the open-ended meaning of constitutional values, such as dignity, or constitutional principles, such as nondiscrimination. Therefore, it would seem, on balance, desirable if the ECJ were to decide more constitutional cases in an appellate capacity than as a court of first instance.

4. Bases of legitimacy of constitutional adjudication by the ECJ and the Supreme Court

Because, as we have seen, neither the ECJ nor the Supreme Court is explicitly identified as the authoritative constitutional interpreter, they both confront challenges to their legitimacy as the ultimate adjudicators. The respective bases for such challenges are, however, different. Objections to the authoritativeness of the Supreme Court are based on two principal grounds: separation of powers and the countermajoritarian problem. The separation-of-powers argument is predicated on the fact that all three branches of the federal government are coequal and, thus, the executive and legislative branches are as empowered to interpret the Constitution as the judiciary. The countermajoritarian argument, on the other hand, boils down to the claim that life-tenured unelected judges should not impose virtually irreversible policy on the polity as a whole. In contrast, the supremacy of U.S. constitutional and federal law over state constitutions and laws is beyond dispute and has been enshrined in article VI of the Constitution.⁵⁵

For its part, the ECJ confronts altogether different legitimacy issues. The countermajoritarian difficulty is virtually nonexistent, and the ECJ does not confront much of a separation-of-powers problem. The greatest challenges to the ECJ's legitimacy are mainly vertical in nature. They come from the member states and, especially, from the latter's constitutional courts. Several of these have asserted that their states' constitutions are paramount, and that conflicting EU law is not entitled to supremacy and should yield. The ECJ has constantly rejected this position but has bent over backward to avoid head-on conflicts with nation-state constitutional provisions.

As already mentioned, objections to the authoritativeness of Supreme Court decisions are few and far between but, nonetheless, they pose a significant challenge to the U.S. highest court's legitimacy as the ultimate interpreter of the Constitution. These objections are usually cast in terms of separation-of-powers concerns for the preservation of the coequality of all three branches of the federal government. Thus, in Attorney General Edwin Meese's attack on Supreme Court authoritativeness,⁵⁶ the concern was for the preservation of asserted executive branch prerogatives, in the context of strong divergences between the Reagan Administration and the federal courts over politically explosive issues, such as abortion and affirmative action. Meese's central argument was that though all three branches of the federal government were equally bound by the Constitution, Supreme Court decisions and precedents made up “constitutional law” which was not binding on the executive or legislative branch.⁵⁷

Because the two other branches of the federal government, the so-called “political branches,” are led by democratically elected officials, while U.S. federal judges are appointed for life, there is significant congruity between the separation-of-powers challenge to the Supreme Court's authoritativeness and that predicated on the countermajoritarian difficulty. Unlike the traditional reliance by the U.K. on parliamentary sovereignty, the U.S. constitutional architecture is built on a foundation of checks and balances. The countermajoritarian difficulty arises as a consequence of the Supreme Court's constitutional adjudication emerging, as a practical matter, as a “check that is itself unchecked.”⁵⁸ When the U.S. Congress disagrees with the Supreme Court's interpretation of a federal statute, it can, in effect, overrule the Supreme Court through further legislation.⁵⁹ In the constitutional area, however, the only possible check on the Supreme Court is through constitutional amendment, which is extremely difficult to achieve in the U.S.⁶⁰ Hence, the countermajoritarian difficulty: the U.S. Constitution sets up a multilayered democracy (federal versus state; federal legislature versus federal executive) and, while the Constitution does contain certain antimajoritarian provisions,⁶¹ expansive judicial interpretation can illegitimately and unduly constrict the domain left by the Constitution to democratic politics.⁶²

The ECJ has no significant—horizontal—separation-of-powers or countermajoritarian problem because, paradoxically, there is less democracy in the EU context than in that of the U.S. Indeed, the U.S. is generally perceived by its citizens as having a healthy working democracy at both the state and federal levels of government (except to the extent that, according to some, there are unwarranted judicial excesses). In contrast, the EU, as a whole, is widely perceived as suffering from a “democratic deficit”⁶³ accordingly, the ECJ is not, and need not be, singled out as a countermajoritarian institution. Furthermore, because EU institutions are not as well or as deeply embedded in the constitutional self-identity of member state citizens as U.S. federal institutions are in that of U.S. citizens, interinstitutional rifts between the ECJ and the other major EU governing bodies could pose a far more serious threat to the smooth implementation of EU policy than could occur in the U.S.⁶⁴

In spite of the separation-of-powers and countermajoritarian objections, the Supreme Court enjoys, by and large, a high level of acceptance and respect. This is principally due to two factors: the special role of the judge—and a very active role, at that—in the common law tradition and, in the U.S., the prevalence of the Lockean conception of rights as negative in nature and asserted against the state as opposed to positive and dependent on state intervention.⁶⁵

In the common law tradition, the judge makes law by incrementally fashioning strings of precedents through the resolution of sets of conflicts that bear certain similarities to one another. The common law judge, for example, can elaborate contract or tort rules, and thus literally make law. It is true that contemporary common law judges must apply legislatively enacted codes, which, in principle at least, should greatly limit their legitimate lawmaking role. It is also true that the U.S. Constitution is, formally, a statute rather than a judge-made body of law.⁶⁶ Nevertheless, the combination of the generality and abstract quality of many constitutional provisions, such as “due process of law” or “equal protection,” and the common law judicial tradition afford great latitude for judicial constitutional lawmaking.

Notwithstanding the broad latitude enjoyed by the common law judge, there is great respect in the U.S. for the judicial function, which is due, in part, to the judge's pivotal role in the protection of the citizens' fundamental rights against government intrusion. Thus, unlike the civil law judge, who appears to be always on the side of the state, the common law judge is often on the side of the citizen against the state, including in constitutional cases in which a citizen's negative right is being trampled upon by the state. Although this does not render judges immune to criticism or challenge, it does provide them with an enormous amount of good will that has yet to dissipate despite the prevailing era of great political divisions. Even the judges' greatest critics, arguing on countermajoritarian grounds, do not advocate taking constitutional review out of the hands of judges but propose only to limit the scope of their discretion through interpretive constraints.⁶⁷

In spite of the remarkable success, noted above,⁶⁸ that the ECJ has had with national judges, it does have a vertical division-of-powers legitimacy problem. Like the U.S. Constitution's supremacy clause, which makes federal law paramount,⁶⁹ Community law is supreme and prevails over inconsistent member state law. Unlike the U.S. Constitution, however, the EU treaties do not address the supremacy issue.⁷⁰ It is the ECJ itself that has ruled that Community law is supreme in its landmark Costa decision.⁷¹

That the EU's supremacy is judicially grounded rather than explicitly provided for by the treaties already makes it less rock solid than its U.S. equivalent. What poses an even more serious threat to its legitimacy, however, are conflicts between Community law and the member state constitutions. In a federal system such as that of the U.S., such conflicts are easily resolved and supremacy secured since the federated state constitutions must yield to the federal constitution and federal law, just as any other inconsistent state law or regulation would.⁷² In contrast, for the hybrid sui generis EU system, which is neither wholly federal nor wholly confederal, there are no prescribed means for dealing with conflicts between EU law and national constitutions. In addition, several member state constitutional courts have asserted that EU law could not be granted supremacy within their countries to the extent that it conflicted with their constitutions. Thus, in its famous Solange I decision, the German Constitutional Court made it clear that if Community law were to violate a fundamental right protected by the German Basic Law, then the latter would prevail.⁷³ The Italian Constitutional Court took a similar position in its Frontini decision.⁷⁴

Thus far, notwithstanding these conflicting assertions of supremacy, no showdown has occurred between the ECJ and any national constitutional court. Both have seemed to take great pains to avoid creating an impasse. As mentioned above, the ECJ has incorporated fundamental rights into its general principles of law and has drawn inspiration from the common constitutional traditions of the member states.⁷⁵ On the other hand, national constitutional courts have noted, on several occasions, potential conflicts between EU law and their states' constitutions but have ruled that there was no actual conflict in the case before them.⁷⁶

In spite of the prevailing high degree of comity between the ECJ and national constitutional courts, the vertical-division-of-powers difficulty that confronts the ECJ could lead, potentially, to a legitimacy crisis for the court. One can but wonder whether the French and Dutch referenda rejecting the European constitution⁷⁷ mark the onset of an era of retrenchment within the member states. If that were to prove the case, it could trigger a crisis in the ECJ's legitimacy the likes of which now seems unthinkable in connection with the U.S. Supreme Court.

5. The contrasts in style and rhetoric between the ECJ and the Supreme Court

As has been widely noted, the judgments and opinions of the ECJ and the Supreme Court are vastly different.⁷⁸ The ECJ follows a Cartesian, deductive syllogistic French style, whereas the Supreme Court follows a much more dialogical, conversational, analogical, and argumentative style.⁷⁹ Furthermore, also in the French style, the ECJ speaks with one institutional voice and no dissents, whereas the Supreme Court speaks with a multiplicity of individual voices, dissenting opinions, concurring opinions, and, at times, in important constitutional cases, with only a plurality agreeing on the reasons why the winning party is entitled to judgment in her favor.⁸⁰

In the French style, the court “speaks” the law or the Constitution in the name of the republic as an indivisible whole. In contrast, in the U.S. common law context, judges “make” or infer or construct the law (notwithstanding political slogans to the contrary)⁸¹ by a process of interpretation, accretion, experimentation, argumentation, and trial and error. Constitutional cases taken by the Supreme Court are, generally, overwhelmingly difficult ones over which reasonable judges can disagree and which have often been resolved in inconsistent or contradictory ways by different lower courts. French constitutional cases are no less difficult or controversial, but in the French model, the rule-of-law republic speaks with one voice regardless of the actual difficulties presented by the constitutional issue at stake. In the U.S. model, on the other hand, the difficulties are in full view and competing arguments extensively presented. The French Conseil Constitutionnel speaks with one institutional voice and issues a single unsigned opinion without dissents. In contrast, the Supreme Court proceeds in most cases through individually signed opinions and publishes dissenting opinions as well as concurring ones, which may agree with the majority on the result but not on the grounds or the reasoning of the majority. Many important constitutional issues are decided 5–4, and the loser's best case is laid out side by side with the winner's in the Supreme Court's official reports.

The ECJ style seems anomalous because the EU is simply not analogous to France. The latter is an established nation-state with a long history and constitutional tradition. The EU, on the other hand, is still in an experimental phase, still under construction, undergoing both enlargement and constitutional flux. As one observer has argued, viewed closely, ECJ judgments are bifurcated, with judgments à la française but with advocate general (AG) opinions that are much more in the style of U.S. opinions.⁸²

To place the Supreme Court's and the ECJ's respective styles and rhetoric in context, I will consider them in light of the role each court plays within the institutional and constitutional framework in which it must operate. Their respective styles and rhetoric may be examined, as well, in relation to each court's contribution to the ongoing production and preservation of the constitutional identity required to sustain the relevant constitutional order. That order is that of the U.S. federation for the Supreme Court, and that of the emerging and evolving hybrid federal and confederal order of the EU for the ECJ.

In the U.S. constitutional vision of divided centers of democracy and of checks and balances, judicial power is based on argument, judgment, and persuasion; in other words, in the “power of the pen,” as opposed to the executive power, which is the “power of the sword,” and the legislative power, which is “the power of the purse.”⁸³ Constitutional review by the Supreme Court may amount to an “unchecked check,” but that should be mitigated by the fact that the judiciary is supposed to be the “least dangerous branch.”⁸⁴ Placed in its proper context, therefore, the Supreme Court's dialogical and argumentative style seems to be shaped, above all, by its common law origins and methodology. If the common law judge could legitimately make law it is because he could combine authoritativeness and persuasiveness.⁸⁵ Such authoritativeness was derived from the common law itself inasmuch as it incorporated the fairness, wisdom, common values, and learning through empirical experimentation that embodied what was best within the polity. Because of his social position, sense of responsibility, and training, the common law judge was in the best position to discover and preserve that which was deserving of authority.

On the other hand, persuasiveness was of paramount importance to the common law judge because he stood as an intermediary between the state and its citizens (or subjects, in the case of the British monarchy). To the extent that his judgments are official and enforceable through deployment of the state's police powers, the common law judge looms as an agent of the state against the citizen. At the same time, as mentioned above, in elaborating constitutional protections against the state (whether they are the unwritten norms of the British constitutional system or the written provisions of the U.S. Constitution), the common law judge also functions as if he were the defender of the citizen or subject against unwarranted or unconstitutional state intrusion. To maintain a workable equilibrium between these two functions, the common law judge must be persuasive vis-à-vis the state and vis-à-vis the citizen. In the context of a democratic state, moreover, this means being persuasive to the requisite majorities while, at least in principle, remaining persuasive to all those who belong to some unpopular minority and are yet subject to the full force of majoritarian law.⁸⁶

In her pivotal institutional role as mediator among various centers of governmental powers and among the latter and the citizen, the common law judge must, to the best extent possible, combine authoritativeness and persuasiveness. Moreover, when the tensions between the latter two are too high for integration, the common law judge must fairly and judiciously mediate between them. Unlike French constitutional adjudication, where authoritativeness is predominant—with major decisions of the French Conseil Constitutionnel consisting of handfuls of paragraphs summarily citing the sources of authority without any apparent effort to persuade the reader⁸⁷—in U.S. constitutional adjudication authoritativeness depends, to a large extent, on persuasiveness. And there is perhaps no better example of this than Chief Justice Marshall's opinion in Marbury v. Madison in which he argues forcefully for the authority of the Supreme Court as constitutional adjudicator, notwithstanding a lack of clear textual guidance in the U.S. Constitution.⁸⁸

In terms of constitutional identity, the most important influence on the Supreme Court's judicial style and rhetoric comes from the U.S. approach to reconciling unity and diversity as encapsulated in the motto E Pluribus Unum.⁸⁹ From the outset, the U.S. has been a country of immigration and a haven for persecuted religious minorities.⁹⁰ In a manner implicitly consistent with both its motto and its origins, Americans regard their socioeconomic and political space as animated by clashes among competing interests kept peaceful and orderly by fair rules of engagement.⁹¹

To complete this rough sketch, mention must be made of the role of the adversary system of justice on U.S. conceptions of law and constitutional identity. In the legal arena, as in the economic one, diverse interests compete, and such competition is supposed to be channeled into peaceful and productive ends through means that transcend the particular interests of the competitors. Ideally, within this vision, what sustains the economy is the protection of property and contract rights and the “invisible hand” of competition. What sustains the system of justice, on the other hand, is the resolution of hard-fought adversary litigation by a neutral arbiter—neutral, at least, in the narrow sense of not being biased in favor or against any adversary before her—and, in the best of cases, through the application of procedural rules or, in any event, through legal norms that can be persuasively defended as authoritative. In constitutional cases, moreover, adversarial competition is over differing interpretations of the Constitution—for example, the Constitution does or does not authorize electronic surveillance of citizens without prior judicial authorization—and the judge's opinion must justify, through persuasive argument, her choice among these various readings or else her decision to impose one advanced by none of the adversaries before the Court.

The Supreme Court relies on both formal and policy-oriented arguments, often using one against the other.⁹² The Supreme Court also makes great use of “weighing,” “balancing,” and is prone to focusing on a multitude of “factors” and “considerations,” when tackling constitutional issues.⁹³ These techniques—even the contradictions between formalism and policy—are entirely consistent with reconciling unity with a multiplicity of competing interests and with achieving both authoritativeness and persuasiveness. Indeed, when a formal legal (that is, constitutional) norm is well established and widely accepted, it is likely to be perceived as rising above interests. Under such circumstances, adherence to formalism is apt to be more authoritative and persuasive than engaging in policy analysis. Conversely, when no widely acceptable formal solution is at hand, interest analysis seems inevitable. In the latter case, finding the best interests, the ones prompted by the largest majorities, and weighing and balancing competing interests to reach the most productive and least restrictive accommodation of interests seem to provide the best means of reconciling unity and diversity.

Within this institutional context, and consistent with the constitutional identity sketched above, the publication of concurring and dissenting opinions and even the close 5–4 Supreme Court decisions on important constitutional issues, by and large, strengthen rather than weaken the Court's legitimacy. Indeed, for one thing, in the face of disputed values and interests, dissenting opinions can give voice to and preserve a sense of inclusiveness for the loser in the relevant adversarial contest. For example, in 1986, the Supreme Court held in a 5–4 decision that the constitutional right to privacy does not extend to homosexual sex among consenting adults.⁹⁴ Arguably, the vehement dissent by four justices provided a measure of comfort to the losers that would have been lacking had the Court been unanimous, or had it been compelled, like a French court, to render a single institutional judgment. Moreover, where it is difficult to come by a persuasive resolution of a constitutional conflict that the Supreme Court cannot avoid, the 5–4 decision can be authoritative because it is a binding opinion without seeming authoritarian. Finally, as the common law is incremental and empirically grounded, over time, dissenting opinions may become more persuasive. Thus, for example, in 2003 the Supreme Court in a 6–3 decision reversed itself and overruled its previous decision on the privacy rights of homosexuals.⁹⁵

Whereas the style and rhetoric of the Supreme Court appears well integrated, the bifurcated approach of the ECJ, with French-style judicial decisions and U.S.-style AG opinions, seems quite puzzling. First, as already noted, the EU, unlike France, is not a long-established republic with a distinct well-entrenched constitutional identity.⁹⁶ Second, the juxtaposition of seemingly authoritative, conclusory, syllogistically ordered terse judicial opinions with multifaceted, dialogical, and broadly encompassing AG opinions that attempt to deal with all plausible arguments relating to the constitutional issues before the ECJ seems, at first, counterproductive. If there is a deductive, syllogistic way to adjudicate a constitutional question, why resort to argumentation and to exposing all the weaknesses and uncertainties surrounding a particular constitutional issue? Conversely, if the complexities and uncertainties manifest in the AG opinions reflect core concerns, does not resort to conclusory, syllogistic judicial opinions undermine the authoritativeness of the ECJ?

When placed in its proper context, the ECJ's bifurcated approach can be understood as coherent and as meeting the Court's and the EU's unique needs and objectives. The ECJ uses French-style judgments for different reasons and purposes than does the French Conseil Constitutionnel. Furthermore, the AG U.S.-style opinions have only a partial congruity of purpose with the dialogical, thoroughly argued Supreme Court opinions. Finally, ECJ judgments have not remained static, since their length and content have evolved, if not their form. This evolution has been from a style and rhetoric that were thoroughly French to something somewhat closer to the U.S. model.

The French judge “speaks” the law both because she is an agent of the state and because, under the civil law paradigm, legal interpretation is supposed to distill an objective deductive operation. More specifically, the French judge is an agent of the republic, as it forms an indivisible whole, and of the legislator (constitutional or ordinary), which has issued the applicable legal norm(s). Moreover, the style and rhetoric fashioned to reflect the above-mentioned institutional and identity-based arrangement is so firmly entrenched that it endures even when the foundation upon which it rests is undermined. Thus, in its landmark 1971 Associations Law Decision⁹⁷ the French Conseil “made law” in perhaps a bolder manner than did Chief Justice Marshall in Marbury and yet presented its decision in its customary few conclusory paragraphs. Under the guise of “speaking” the law, however, the Conseil transformed its role from mere guardian of the boundary between executive and legislative power to a guarantor of individual rights against legislative infringement.⁹⁸

In contrast, the ECJ, though it lacks a unified republic for which it can speak, neither does it have to deal with the institutional concerns that confront the French judge. In the French tradition, the judiciary is subordinated to the legislature, but there is nothing similar in the EU. Actually, as was already pointed out, there are no serious tensions between the ECJ and EU governing institutions. Accordingly the ECJ does not have to “speak” the law to avoid offending the Commission or the Council. Instead, the ECJ has to “speak” the law to promote its own and the EU's authoritativeness, as if the latter were a stable long-established republic when, in fact, it is an evolving work in progress without a fixed constitutional identity.⁹⁹ Initially, all the ECJ judges came from civil law countries and thus may have been predisposed toward the French approach. Be that as it may, by using the deductive conclusory French style, the ECJ was able to communicate to the member states that the treaties they had entered into compelled the “constitutional” results reached by the Court. This is well illustrated in the Van Gend en Loos decision, where the ECJ was as bold as the French Conseil would be a few years later in its Associations decision. In the words of the ECJ:

The wording of Article 12 [of the Treaty] contains a clear and unconditional prohibition which is not a positive but a negative obligation… . The very nature of this prohibition makes it ideally adapted to produce direct effects in the relationship between member-state and their subjects.¹⁰⁰

In contrast to the ECJ judges, the AG submits an individually signed opinion that is dialogical and argumentative in style. Article 222 of the constitutional treaty provides that it is the duty of the AG “acting with complete impartiality and independence to make, in open court, reasoned submissions” meant to assist the judges in disposing of the cases before the ECJ. AGs consider interpretive issues regarding EU treaties and legislation as well as the Court's previous decisions and academic commentary on the latter; they concentrate, above all, on an extensive review of the ECJ's jurisprudence.¹⁰¹ Perhaps most striking about the AGs' opinions are their personal style and their inclusiveness, both in terms of the relevant issues and of the positions and arguments of all parties likely to be affected by the ECJ's decision.

In sharp contrast to the judges' impersonal language, the AG uses phrases like “such an approach seems unsatisfactory to me”¹⁰² and “it seems to me to be appropriate to reconsider the effect of directives,”¹⁰³ the latter statement notably opening the door to major changes on a most important issue of ECJ jurisprudence.¹⁰⁴ Moreover, the AG also states and evaluates the pros and the cons of the various arguments presented on all sides of the issues raised by the case at hand.¹⁰⁵ The AG's arguments are presented in language that connotes objectivity and fairness, with phrases such as “substantial arguments exist against such a change in the case law”¹⁰⁶ or “reference is made to … the wording of…the Treaty… .”¹⁰⁷ When it comes to the AG's own arguments and positions, however, the rhetoric turns unmistakably subjective—for example, “in my view those arguments [previously characterized as “substantial”] can be refuted.”¹⁰⁸ Finally, the AG's opinions are inclusive not only of a wide panoply of relevant arguments but also of the positions of all interested and potentially affected parties and, in particular, the member states who, though not parties to the case, have an interest in its outcome.¹⁰⁹

AG opinions are, on the one hand, plurivocal,¹¹⁰ and open to a broad panoply of plausible arguments that often expose the complexity, contradiction, fragility, or near equivalence, in terms of persuasiveness, of the contending arguments or positions. On the other hand, AG opinions are, at the same time, personal, seemingly subjective, and often suggest that the multiple levels of diversity that emerged in the course of the opinion's narrative can only be reconciled into a workable unity through processing from the singular perspective of an individual—as learned and impartial as this individual may be. In other words, in the AG's opinion, it is not the institution that speaks but, rather, after due deliberation and consideration of all institutional factors, an individual who sees it all from her uniquely situated position and who advocates, accordingly, what she thinks the ECJ decision should be.

As dialogical and argumentative, AG opinions are similar to those of Supreme Court justices. The former, however, are much less adversarial in tone than the latter. Operating in an adversary system, once a justice has decided a case, she becomes an advocate for her position, and, in the context of disagreements between majority opinions and dissents, each is prone to argue as much against the other as in favor of her own views. For example, in Printz v. United States,¹¹¹ an important 5-4 federalism case, the various opinions are replete with charges and counterchanges. Thus, in his opinion for the Court's majority, Justice Antonin Scalia writes: “Justice Souter contends that his interpretation … is ‘supported by [Federalist] No. 44. … In fact, Federalist 44 quite clearly contradicts Justice Souter's reading.”¹¹² Justice Souter replies in his dissent: “The Court reads [the Federalist passages it cites to attack Souter's views]…. But I doubt that Hamilton's English was quite as bad as all that…. One simply cannot escape from Hamilton by reducing his prose to inapposite figures of speech.”¹¹³

In contrast to this adversarial and even, in some cases, confrontational style, the AG opinion seeks, whenever possible, to harmonize difference and diversity, and, even when that is not possible or when squarely advocating a change in jurisprudence, to proceed in a nonconfrontational manner. The role of the AG is to foster “unity out of diversity,” to evince openness and acceptance toward all relevant players and, particularly, the member states—by both taking their positions into account and trying to persuade them of the soundness of the ECJ jurisprudence and of the position taken by the AG. Moreover, both the ECJ and AG work toward the same goal: to find, define, and preserve the EU's unity as framed by the main objectives found in the EU treaties. The ECJ judges seek to achieve this through stylistic and rhetorical devices that connote authoritativeness, the AGs through an inclusive discursive approach that manifests respect for diversity while making a personal appeal for unity—an appeal from someone who understands and empathizes with the concerns of all those who have a high stake in the ECJ's decisions. By comparison, the Supreme Court does not seem especially concerned with unity,¹¹⁴ because the unity of the U.S. is much more firmly anchored than that of the polity circumscribed by the EU; because, ordinarily, the Supreme Court is less pivotal for the sake of unity than is the ECJ; and because, save in exceptional circumstances, the unity of the Supreme Court as an institution does not depend on unanimity.

The bifurcation between ECJ and AG opinions has become somewhat attenuated over the years. For example, in an important and relatively early case such as Nold,¹¹⁵ in which the ECJ held that fundamental rights, as protected in the constitutional traditions common to all member states, form part of the general principles of law that it applies, the Court's judgment consisted of seventeen rather short paragraphs. In contrast, judgments in more recent cases tend to be much longer.¹¹⁶ Furthermore, though the recent ECJ judgments are not as discursive as the AG opinions, they are much more so than the Court's early judgments. A key factor in both the increase in length and in the more discursive nature of the more recent judgments is the ECJ's discussion of its past decisions, and the close attention it pays to its jurisprudence. There may be many reasons for this shift, but by far the most important, for present purposes, is that it is the ECJ itself and its body of jurisprudence that have replaced the vague and mostly hidden Community—the state-like entity (in the name of which the Court spoke in the early days)—as the source of authoritativeness for the EU, its legal regime, and the constitutional order it seeks to impose.

6. Comparing ECJ and Supreme Court methods of constitutional interpretation

As was made clear in the course of the previous discussion, both the ECJ and the Supreme Court have engaged in broad and sweeping interpretations far removed from strict textualism. Looking beyond styles and rhetorical modes, both courts rely on certain types of overlapping arguments. The Supreme Court uses five types of arguments: (a) textual; (b) from the framers' intent; (c) constitutional theory (coherence); (d) from precedent; and (e) value arguments (such as moral, policy, or teleological arguments).¹¹⁷ The ECJ uses, above all, a purposive and metateleological approach¹¹⁸ that relies on what are, essentially, value arguments in terms of the U.S. classification. More particularly, the ECJ relies primarily on arguments (a) from history, which bear some affinity with U.S. arguments from the framers' intent though without privileging any particular moments in history; (b) from “contextual harmonization,” which correspond to U.S. arguments from constitutional theory; (c) from precedent, which differ from their U.S. counterparts as they are predicated on a concern for institutional integrity and continuity rather than on the bindingness of past decisions; and (d) from “general principles of law.” These are a hybrid of two U.S. categories, namely, constitutional theory and value arguments—the latter being the principles behind the EU treaties and the fundamental principles behind the member state legal systems.¹¹⁹

Although the nature of the arguments to which the Supreme Court and the ECJ resort overlap significantly, the purposes to which these arguments are put by each court differ widely. The Supreme Court uses different arguments plurally to ward off or defuse internal threats to its authority and to the prevailing constitutional balance. The ECJ, on the other hand, combines these arguments to bolster its metateleological approach, which it deploys as its main weapon against external threats. The internal threats confronting the Supreme Court are the breakdown of the fragile equilibrium between democracy and constitutional adjudication, brought to the fore by the countermajoritarian problem, and the erosion of the Court's power in relation to that of the political branches as a result of struggles with regard to the separation of powers. For its part, the external threat to the ECJ, as already mentioned, is that posed by the member states and their constitutional courts, in particular. Moreover, that external threat extends not only to the ECJ but also to the EU itself.

As noted in section 5, above, in the broadest terms Supreme Court arguments break down at the highest level of abstraction into formal ones and policy-oriented ones. In terms of the countermajoritarian difficulty, formal arguments are attractive to the extent that they seem to remain impervious to the subjective preferences of judges. On the other hand, policy-oriented arguments may exacerbate the countermajoritarian difficulty, though they need not if the policies involved are approved by large majorities. However, policy arguments, understood broadly as encompassing all values,¹²⁰ can also play an altogether different legitimating role for those who reject the validity of countermajoritarian objections. Indeed, those who maintain that constitutional rights derive from principles and must, therefore, be interpreted in terms of the latter, can plausibly claim that a principle-based jurisprudence can, at once, be countermajoritarian and avoid judicial subjectivism.

Although there is no necessary logical connection between these, there has been a strong congruence, sustained for some time, between a formalist or a logical positivist approach to constitutional interpretation, on the one hand, and originalism—namely, that constitutional interpretation must follow the framers' intent—thereby confining the judge to the “plain meaning” of the constitutional text, on the other.¹²¹ Proponents of this approach consider arguments from the text of the Constitution and from the framers' intent legitimate and consistent with originalism. They also believe that arguments from precedent and value arguments are illegitimate.¹²²

In contrast, those who take the position that the constitution should be interpreted so as to meet the needs of contemporary society, to promote justice, or to implement certain principles or policies are likely to be antiformalists and to rely heavily on value arguments. This does not mean that those in this antiformalist camp will not use arguments from the text or from the framers' intent. It means, however, that those interpreters will only use the latter inasmuch as they serve the policies—as broadly defined in the abstract sense above—that the interpreters in question understand the constitution to further.

There are three major approaches to constitutional interpretation, and they all make use of the interpretive tools discussed above. These different approaches have been articulated by legal scholars, and traces of one or more of them are found, as well, in constitutional cases adjudicated by the Supreme Court. The three approaches in question are: originalism,¹²³ the principle-based approach,¹²⁴ and the process-based approach.¹²⁵ Originalism bases legitimacy on interpreting the Constitution according to the intent or meaning of the framers, which became authoritative through ratification of the Constitution. Principle-based theory, on the other hand, maintains that judges should be constrained in their constitutional interpretations by principles enshrined in the Constitution.¹²⁶ Finally, process-based theory argues that the Constitution fosters, above all, democracy, and that its provisions—particularly those in the Bill of Rights—are meant to prevent or remedy malfunctions or abuses of the democratic process. Thus, for example, freedom of speech guarantees the integrity of the democratic voting system. Indeed, without adequate access to multiple sources of information, the citizen cannot make adequate voting choices. Accordingly, if the majority prohibits the communication of certain political ideas it ultimately undermines rather than promotes democracy, and the Court is best placed to protect the integrity of the democratic process.

Although, each of the three approaches handles the countermajoritarian difficulty in its own way, none of them has dealt definitively with countermajoritarian or institutional objections to the broad interpretive powers of the Supreme Court. To a great extent, this is due to the fact that each of these approaches is vulnerable to internal and external objections.¹²⁷ For example, even if one accepts the legitimacy of originalism, there may be internal questions concerning whose original intent should be relevant, the framers' or ratifiers', whether subjective or objective intent is at stake, and whether or not, in many crucial instances, discovering the relevant intent is altogether possible. On the other hand, from an external standpoint the very legitimacy of the originalist position may be questioned.¹²⁸ Similarly, one may accept the principle-based approach but dispute whether a particular set of principles, such as the liberal-egalitarian ones advanced by Dworkin, are authoritative. Or, one may reject altogether the principle-based approach, as the originalists do. Finally, one may question the scope or workability of the process-based approach, or insist, as proponents of the principle-based approach do, that the Constitution is much more about substance than about process.

The plurality of these approaches or of the interpretive methods used by Supreme Court and examined by its observers do not necessarily preclude achieving unity amid this diversity. Viewed individually, each of the above interpretative methods, approaches, and types of argument can be used as a sword or shield in the internal struggle to achieve a proper constitutional balance. Originalist arguments can be used to attack judicial activism in cases such as those that afford protection to abortion rights; principle-based ones can be advanced to eradicate the vestiges of racial segregation; and process-based arguments can be interposed to ward off legislative or executive encroachments on judicial power. Viewed collectively and dynamically, the plurality of conflicting approaches and methods can serve to promote reconciliation between unity and diversity, so long as that is understood as a dynamic process in a constant state of flux.

Ultimately, the achievement of a workable unity depends on maintaining a sufficient consensus regarding the legitimacy of the Supreme Court as constitutional adjudicator. This can be done by various means; first, through an acceptance of the substance of its decisions—either because there is broad popular support for them or because various approaches converge to legitimate the particular result produced by the Court. Alternatively—or additionally—acceptance of the Court as adjudicator may come from the process involved, including evidence of serious consideration of various contending viewpoints, evinced by the publication of dissenting opinions, or on the basis of the Supreme Court's position vis-à-vis the political branches consistent with a broadly appealing conception of the separation of powers. Finally, for the Supreme Court to stay sufficiently ahead—in the internal war to preserve constitutional unity and coherence through interpretation—it must not only counter internal threats defensively but must also do so proactively. In part, the Supreme Court must react against attacks or threats by critics or coequal branches; however, it must also fill certain vacuums. In particular, given that the Supreme Court works with a Constitution that is more than two hundred years old and very difficult to amend, it must inevitably update its constitutional jurisprudence and fill gaps through its interpretive practices. Thus, the main challenge to the Supreme Court is clearly internal, and its success in the end will depend on whether it can sufficiently divide those who challenge its authority while, at the same time, rallying enough supporters to its side.

Turning to the ECJ, its broad interpretive tools, as noted above, are similar to those employed by the Supreme Court; however, the ECJ puts them to use mainly against external threats from the member states. Although, like the Supreme Court, the ECJ seeks to accommodate, at once, both unity and diversity, the ECJ places most of its emphasis on unity, and it does that, above all, through deployment of metateleological arguments and through harmonization that involves subsuming other arguments under metateleological ones. As one observer puts it, the ECJ frames its “analysis primarily in terms of systemic meta-policies…deployed in an overtly purposive … fashion to promot[e] … the ‘effectiveness’ of the EU system and its legal provisions… . [I]t is the fashioning of a proper Community legal order—not the advancement of the Treaty provisions' purpose nor the promotion of substantive economic or political ends—that takes priority.”¹²⁹

Given the preponderance of preliminary references from national judges, most of the metateleological arguments that shape the ECJ's interpretations are addressed, in the first instance, to member states. Such arguments, however, are not used exclusively to ward off external threats or to address issues directly concerning member states. In certain cases, such as European Parliament v. Council of the European Communities, a horizontal separation-of-powers case, the ECJ used a metateleological argument to give the European Parliament standing to sue even though the treaties were silent on the matter. That silence, the ECJ noted,

… may constitute a procedural gap, but it cannot prevail over the fundamental interest in the maintenance and observance of the institutional balance laid down in the treaties establishing the European Communities.¹³⁰

For the most part, though, metateleological arguments have been put to use in cases involving relationships between the ECJ, the EU, and member states and, on many occasions, for purposes of advancing sweeping EU powers. For example, in Van Gend en Loos, discussed above, in determining whether community treaties should be given direct effect within member states, the ECJ deemed it “necessary to consider the spirit, the general scheme and the wording” of the relevant treaty provisions.¹³¹ The Court went on to specify that, given that the EEC treaty's purpose is to establish a common market,

… the community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights … and the subjects of which comprise not only member states but also their nationals.¹³²

In its efforts to promote “unity out of diversity,”¹³³ the ECJ has not only imposed substantial burdens on member states but, to avoid clashes with national constitutional courts, it has also incorporated, in the areas of general principles of law and of fundamental rights, norms that emerge from the common constitutional traditions of the member states.¹³⁴ In this connection, it is not surprising that the ECJ spoke at the beginning as if it were expressing the will of a highly powerful sovereign and that, subsequently—as a consequence of its incorporation of rights best protected by courts and of its considerable jurisprudence devoted primarily to promoting unity—it has become increasingly self-referential. It is also remarkable that, in its most sweeping decisions promoting the unity of the EU's system of governance, the ECJ did not simply rule in favor of the Community against a member state but also in favor of a citizen against her own member state. Thus, the Van Gend en Loos decision availed Dutch citizens of a Community benefit that could be asserted against the Netherlands, and in Francovich the ECJ granted an Italian citizen a right against Italy for the latter's failure to implement an EU directive.¹³⁵

In the end, it is remarkable that the ECJ has had so much success thus far, given the precariousness of its position and the boldness of its jurisprudence. There is little question that the ECJ's position is far less secure than the Supreme Court's and, at the same time, that the ECJ's jurisprudence is bolder than that of the Supreme Court. Paradoxically, it may well be the juxtaposition of the ECJ's precariousness with its metateleological approach that best accounts for its success. It is as if the ECJ communicated, in each of its cases, that the basic architecture of the EU was at stake, and that if its decision were not accepted the court's very precariousness might preclude its remedying the irreparable damage that could ensue to the EU and, derivatively, to the member states were its decisions not recognized.

7. Conclusion

Though neither was established as a constitutional court, both the Supreme Court and the ECJ have developed into powerful and bold constitutional adjudicators. This should not be surprising in an age of juristocracy,¹³⁶ in which several tribunals devoted to constitutional review, such as the German Constitutional Court, have achieved enormous influence and prestige. Both the Supreme Court and the ECJ—as well as the German Constitutional Court and others, such as the South African Constitutional Court—have had a very active hand in the constitutionalization of politics. Such constitutionalization proceeds by removing issues and controversies from the give-and-take of the day-to-day political arena and transforming them into constitutional problems to be settled by adjudication. A dramatic example of the constitutionalization of politics is provided by the Supreme Court decision in Bush v. Gore. Indeed, in that case the Supreme Court took what is a paradigmatic political matter, a presidential election, and, for all practical purposes, dictated its outcome on constitutional grounds.¹³⁷ The success of the constitutionalization of politics depends on the authoritativeness and persuasiveness of the constitutional adjudicator. Absent such authoritativeness and persuasiveness, however, and the constitutionalization of politics is bound to produce the politicization of the Constitution, discrediting both constitutional review and the courts that engage in it. This came close to happening in the aftermath of Bush v. Gore. But, because of the institutional capital and prestige of the Supreme Court, it did not; the Supreme Court judgment was followed, the election settled, and although the Court was heavily attacked by public opinion at the time these attacks soon subsided.

Both the Supreme Court and the ECJ enjoy great institutional stature due to the quality of their work, their ability to keep the constitutionalization of politics above politicization of the constitution, and their capacity to blend constitutional identity and institutional balance—in the case of the Supreme Court through promoting and managing diversity, in that of the ECJ through extracting unity out of diversity. Having survived Bush v. Gore, the Supreme Court's foreseeable fate seems secure. That of the ECJ, however, may not be. So far, the EU has lived through a phase of expansion—both in terms of geographic breadth and institutional depth—and the ECJ has been both pivotal in and at the forefront of this expansion. But if the French and Dutch referenda rejecting the proposed constitutional treaty mark the beginning of a phase of EU retrenchment, then the ECJ's bold activism may well become less sustainable. In the end, courts like the Supreme Court and the ECJ are powerful constitutional adjudicators, but they must still navigate political waters carefully lest they lose their authority and power to persuade.