The contribution of the United States Supreme Court and the European Court of justice in the vertical and horizontal allocation of power

Abstract

PhDThis thesis explores the contribution of the US Supreme Court (USSC) and the European Court of Justice (ECJ) in the vertical and horizontal allocation of power. Said differently, it answers the two following questions: How do both Courts draw the line between the realm of politics and judicial process? How do they allocate power between the Union and its component States? After examining standing, the political question doctrine, negative and positive integration and liability in damages on both sides of the Atlantic, it is concluded that both Courts should not always look for “substantive” constitutional benchmarks. The reason lies in that sometimes the latter may turn to be either questions deemed too political for judicial resolution or insufficient to control congressional or Community legislative powers. Additionally, the judicial department should also pay due regard to a “process” review. This type of review would operate at two levels. At first stage, Courts should solve flaws in the procedure by which the political institutions adopt their decisions. For instance, this would be the case where procedures neglect “discrete and insular” minorities, or where they entrench incumbent political majorities. Thus, judicial review would be principled upon understanding “democracy” as an intangible value that cannot succumb to majoritarian pressures. At a second stage, Courts should also examine whether, in their deliberations, political actors pay due account to all interests at stake, particularly, to those not represented in the political process