Political and Constitutional Overrides

The independence of courts is of seminal importance to both national and international politics. On the domestic arena, courts are one of the pillars of constitutional democracy, serving as a check on the other branches of government. On the international arena, courts are one type of formal organization which can alleviate pressing international collective action problem, by making commitments among states credible. But for courts to exert either role, they have to be reasonably independent from wishes of the politicians they are to check, or whose collective commitments they are to uphold. Recently, judicial independence has been under attack both in Europe and elsewhere. But as governments in some countries move to undermine the independence of courts, we also see proposals to strengthen it, both on the international and national level. To understand the independence of courts, we must understand the interactions between politics and law that shape it. Overrides are changes to laws or rules that nullify, modify, or in other ways change the impact of court decisions. A court says that a law means A, politicians say that it means B. In theories of judicial politics, which studies the interaction between law, courts and politics, overrides have been suggested to be a powerful tool by which politicians can influence the decisions, and by extensions the independence, of courts. In theories on the Court of Justice of the European Union (CJEU) in particular, overrides play a prominent role. However, even though the CJEU is widely seen as one of the most important actors in European integration and one of the world’s most powerful international courts, overrides of CJEU decisions have never been studied directly. This paper sets out to offer a comprehensive theoretical definition of overrides, and investigates whether and how they have occurred in regards to the CJEU.