Comparing Constitutional Review by the European Court of Justice and the U.S. Supreme Court

Abstract

Although neither of them is a constitutional court, both the US Supreme Court and the European Court of Justice conduct extensive constitutional review. Although the European Union does not have a constitution, the European Court often engages in what functionally amounts to constitutional review, particularly in relation to the quasi-federal structure of the EU. This article compares the two courts as constitutional adjudicators. It explores the differences in style and rhetoric between the two courts and places these in their respective institutional and cultural settings. It compares the two courts' approaches to interpretation, and the source and scope of their legitimacy. Both courts have engaged in the constitutionalization of politics and seem in constant risk of politicizing the constitution (or its functional equivalent). The threats to their respective powers and legitimacy are different. The US Supreme Court is vulnerable to internal forces - e.g., the President, Congress, national public opinion - whereas the European Court is mainly vulnerable to external forces - e.g., the member states and, in particular, the latter's constitutional courts.

Keywords: European Court of Justice, constitutionalism, judicial review