How institutions define the policy-making role of courts: A comparative analysis of Scandinavian supreme courts

How do formal and informal institutions define the policy-making role of Scandinavian supreme courts? Existing literature often lumps together Scandinavian Supreme Courts (SCs) as traditionally deferential to elected branches and inherently reluctant to exercise their limited judicial review powers. Recently, however, the SCs in Denmark, Norway and Sweden have become more policy-oriented, deciding cases on contentious political issues such as climate change action, taxation of multinational corporations, collective bargaining, and migration. This changing policy-making role of SCs has provoked charges of judicial activism in public debate and prompted researchers to investigate whether this shift results from, e.g., judicial preferences, external influences of European law, or institutional reforms transforming SCs from courts of appeal to courts of precedence. In order better to account for the changing role of SCs in Scandinavian political life, we need systematic knowledge about the institutional frameworks – of variable formality – that govern Scandinavian SCs. In this paper, we identify the institutional frameworks governing the functioning of the SCs of Denmark, Norway and Sweden, tracing their evolution over the last half-century. Based on original data, the paper analyses institutional variation across five key parameters: National court administrations; constitutional review powers; judicial appointments and professional autonomy; access and docket control; and the internal organization of the court. Demonstrating variance over time and across the three SCs, the paper explores both causes and consequences of this institutional variation, i.e. the drivers of change in the institutional setups governing Scandinavian SCs and how this variation shapes SC decision making. Our analysis demonstrates that although Scandinavian SCs follow similar trajectories, institutional differences are likely to shape their changing policy-making role.