The Role of the Judiciaries in Times of Emergency: Judicial Review of Counter-Terrorism Measures in the US Supreme Court and the European Court of Justice

28 Yearbook of European Law (2010)

34 Pages Posted: 17 Mar 2015

See all articles by Federico Fabbrini

Federico Fabbrini

Dublin City University - School of Law and Government; Princeton University

Date Written: March 15, 2015

Abstract

This chapter is a comparative study of three decisions of the United States Supreme Court (USSCt) and three decisions of the European Court of Justice (ECJ), reviewing the constitutionality of executive and legislative measures adopted by the United States (US) and the European Union (EU) in the fight against terrorism. Its purpose is to elaborate an analytical framework to explain the role of the supreme American and European judiciaries in times of emergency. My argument is that the role of the judicial power in times of emergency is dynamic. Specifically, I claim that the same three-step evolution may be identified in the jurisprudence of the USSCt and the ECJ on the legality of US and EU counter-terrorism measures. In an initial phase, both courts exercise a deferential approach, with a minimal review of the acts of the political branches of government. In a second intermediate phase, the two courts start limiting the effects of their precedents and acknowledge for themselves the power to scrutinize more extensively the policies of the other branches. In a last phase, the judiciaries reaffirm their institutional position in the balance of governance and strictly review the counter-terrorism measures adopted by the executive and legislative powers. The protection of fundamental rights varies accordingly.

Suggested Citation

Fabbrini, Federico, The Role of the Judiciaries in Times of Emergency: Judicial Review of Counter-Terrorism Measures in the US Supreme Court and the European Court of Justice (March 15, 2015). 28 Yearbook of European Law (2010), Available at SSRN: https://ssrn.com/abstract=2578715

Federico Fabbrini (Contact Author)

Dublin City University - School of Law and Government ( email )

Ireland

Princeton University ( email )

United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
201
Abstract Views
976
Rank
272,364
PlumX Metrics