Political Attention, Precedent, and Judicial Activism in International Courts: The Politics of Precedent at the Court of Justice of the EU

Why and how do international courts rely on precedent to back up their judgments? Since precedent formally has no function with international courts, whether and which prior judgments are quoted presents a puzzle. This paper explores the role of analogical reasoning in citing precedent: Analogical reasoning refers to the transfer and application of abstract principles from one case to another. Citing precedent involves important trade-offs: On the one hand, authoritative precedent strengthens legal justifications in the presence of political attention. On the other, transfer and application of abstract principles from substantively unrelated contexts risks disagreement about interpretation and may provoke criticism from political actors. I examine this tradeoff in the context of the Court of Justice of the European Union (CJEU). I apply topic models to the universe of preliminary reference cases, covering almost 7000 judgments, 1961 to 2018. In line with prior research, my results suggest that under political attention, the CJEU cites more authoritative precedent in order to back up its reasoning. As a novel finding, my evidence shows that under political attention, the CJEU becomes more reluctant to look for this precedent in substantively unrelated contexts: Judicial activism, in the sense of connecting previously unrelated areas of law, decreases in the presence of political attention. Theory and evidence offer interesting contributions to the debate on judicial activism in international courts.