Judicial Activism, Separation of Powers

This paper examines the pivotal role of the Greek Council of State in ensuring environmental protection, highlighting its evolution from a purely judicial authority to a key institutional guarantor of sustainable development. Beginning with Greece's constitutional provision (Article 24) enshrining environmental protection as a fundamental obligation of public authorities, the paper outlines the unique characteristics of the Greek legal system, particularly the concentration of political power and the central role of the Council of State in balancing this power.

The author explores the "green jurisprudence" of the Council, noting its innovative and often controversial environmental rulings. Through key decisions, the Council of State has developed a comprehensive test of environmental sustainability that integrates ecological, economic, and social considerations. The paper delves into how the Council has resisted accusations of judicial activism, emphasizing its role in ensuring the legality and proportionality of environmental decisions without overstepping the boundaries of judicial authority.

A central theme is the evolution of the legal framework for environmental protection in Greece, notably the adoption of environmental impact assessments (EIAs) and spatial planning, which have allowed the Council to refine its role and avoid "activism." The paper traces the evolution of these tools and discusses their application in landmark cases, such as the development of the Chalkidiki gold mines and the regeneration of the Ellinikon site.

In recent years, the Council's approach has evolved to address growing pressures for economic development, especially in the context of tourism and urbanization in sensitive areas like the Cyclades Islands. The paper concludes that the Council's jurisprudence, particularly its development of the "carrying capacity" concept, aims to integrate environmental concerns into a broader, long-term strategy for sustainable development. This evolving role of the Council of State serves as a model for balancing ecological protection with the demands of modern governance, setting the stage for future challenges posed by the climate crisis.

Amid the political turmoil following the United Kingdom's popular vote on 'Brexit', the United Kingdom Supreme Court has recently handed down its highly-anticipated ruling in Miller. This judgment conveys remarkable insights about the United Kingdom Supreme Court's perception of the relationship between the national and European legal orders. We invited Oliver Garner, a Ph.D. researcher at the Law Department of the European University Institute working on the legal ramifications of 'Brexit' and an editor of our journal, to write an editorial on the implications of this ruling. Oliver puts the ruling in a broader perspective, comparing it to two other recent national court decisions: Dansk Industri from the Danish Supreme Court and Taricco from the Italian Constitutional Court.

Judicial independence and guarantees in the assignment of cases by the President of the Court by Béla Pokol Let us first look at the situation of supreme judicial forums in some countries with regard to the guarantee limitation of the powers of court presidents to allocate cases, and then at the criticisms so far of the almost unlimited allocation of cases by the President of the EU Court in Luxembourg. The shortest way to do this is through knowledge mining using the latest version 4o of ChatGPT, and this method also exempts the critics here from the accusation of authorial subjectivity, since they were originally developed by in-depth researchers of this topic and only supported here.

Një rishikim i historisë së të drejtës në Shqipëri pas krijimit të shtetit të pavarur shqiptar, dëshmon të dhëna krejt të reja mbi jurisprudencën kushtetuese. Gjetjet arkivore zbulojnë fakte befasuese, të mbuluara nga harresa për shkak të ndërprerjes së trashëgimisë juridike përgjatë regjimit monist. Ky studim ka qëllim të evidentojë një nga ndodhitë më domethënëse për historinë e kontrollit kushtetues në Shqipëri. Ai analizon përpjekjen e Gjykatës së Diktimit, që ishte gjykata më e lartë në vend deri në përfundim të Luftës së II Botërore, për të ushtruar kontrollin kushtetues mbi ligjet. Kjo gjykatë krijoi një rast të kontrollit konkret, por reagimi i regjimit politik arriti deri në shpërbërjen e saj. Analiza e këtij rasti synon të provojë se, përpjekjet për ndërtimin e shtetit të pavarur shqiptar si një demokraci me gjyqësor të pavarur në Shqipëri, janë të pandashme nga lëvizja për kushtetutshmërinë.

From its origins in the Schuman Declaration of 9 May 1950, the Court of Justice of the European Union has developed into a legal leviathan, exercising a profound influence on the Union through its widely-studied case law. That case law has been lauded and criticised in equal measure. Some see it as bold and ingenious, while others consider it the product of a rogue court. Who were the individuals who made the early Court tick? What were the obstacles the Court had to overcome in order to achieve its current status? Why were the Member States slow to grasp the significance of the Court's work? What is the relationship between the Court and the General Court, created by the Council in 1988 to alleviate the pressure imposed on the Court itself by its growing case load? This paper addresses these questions in their temporal, political and geopolitical context.

Zivotofsky v. Kerry (2015) is the most recent challenge to presidential prerogatives, and while the Supreme Court addresses the erroneous mistake espoused by Justice Sutherland in 1936, the Court ultimately fails to harness the unbridled powers of the Executive in the area of foreign affairs. The Court establishes a new standard for presidential ascendancy, which leaves the imperial president largely intact. This Article shows that a dynamic and fluid institutional relationship exists between the executive branch and the Court; the Court affects constitutional and political development by taking a leading role in interpreting presidential decision-making in the area of foreign affairs since 1936. Examining key cases and controversies in foreign policymaking, this Article exposes patterns of regime building by the Court, highlights feedback loops, and examines the long-term effect on presidential politics. Presidents are not bound by their position in the regime. In the area of forei...

Though obligated to see that the law “be faithfully executed,” Presidents sometimes claim the constitutional authority to contravene the law. The War on Terror, in particular, has generated an increasing number of instances in which the executive branch has decided that a federal statute unconstitutionally interferes with core Commander in Chief powers. That assertion of exclusive power provided the impetus for the torture of enemy combatants abroad and warrantless wiretapping at home, even though both actions are prohibited by statute. The scope and sources of exclusive executive power is an important question. This Note argues that Zivotofsky II portends a shift away from the presumption that Congress wins direct confrontations with the President in matters of constitutional ambiguity. Instead, it inverts this presumption by invoking structural advantages of the executive branch. That reasoning will sweep past the recognition context and embolden the President to meet the exigenci...

The objective of this paper is to examine the nature and scope of
the relationship between the support of the legal community for
the judiciary and judicial empowerment in Pakistan. It also
evaluates the nature and scope of judicial empowerment which
increased due to the support of the legal community for the
judiciary in Pakistan during the mid 2000s. Before 2005, the
higher judiciary in Pakistan was not powerful in terms of making
bold decisions against the interests of other branches of the state.
However, the legal community supported the judiciary from
2007 onwards which resulted in judicial empowerment visible in
landmark decisions by the Supreme Court of Pakistan against the
government from 2009 onwards. The paper found that the
support of the legal community for the judiciary leads to judicial
empowerment. The judiciary has neither guns nor purse on the
basis of which it can make bold decisions and implement those
decisions. Therefore, the support of the legal community is
essential for judial empowerment. This paper recommends
strong engagement between the judiciary and the legal
community in Pakistan as the two are interconnected. A strong,
vibrant, active, and supportive legal community can further
empower the judiciary in Pakistan.

The present Insight focuses on the reception by the Danish Supreme Court (judgment of 6 December 2016, no. 15/2014, DI acting for Ajos A/S v. The estate left by A.) of the Court of Justice decision in the Dansk Industri case (judgment of 19 April 2016, case C-441/14 [GC]). Instead of disapplying a national provision which was found by the Court of Justice to be inconsistent with the general principle of non-discrimination of grounds of age, the Danish Supreme Court stresses that the Law of Accession of the Kingdom of Denmark to the European Union does not cover general principles of EU law and the national provision cannot be disapplied. The selective approach of the Danish Supreme Court raises a number of concerns which this Insight highlights: first, a clear misunderstanding regarding the functioning of general principles of EU law; second, a violation of the duty of sincere cooperation and the relate doctrine of supremacy of EU law; third, an arguable assessment of the effects of...

To the parties and lower courts, Zivotofsky v. Kerry has been a dispute primarily about the nature of the President's power to recognize foreign borders. But what if the law also raises another, entirely separate issue under Article II? This essay explores the possibility that Section 214(d) of the Foreign Relations Authorization Act of 2003 is unconstitutional not because it recognizes a border or materially interferes with the implementation of U.S. recognition policy, but simply because it purports to compel diplomatic speech that the President opposes. From this angle, Zivotofsky presents a question about who controls official diplomatic communications, and recognition is beside the point.

Central to EU law and policies is the protection of human rights. For the European Union (EU), these rights are sacrosanct. Over the years, more substance to the protection of fundamental rights emerged. The European Court of Justice (ECJ) is notably entrusted with the protection of human rights and has always deemed it imperative that fundamental rights must be protected within the scope of EU law. The Court has always relied on strong European traditions and values and is guided by the inalienable principle of the rule of law. In the human rights record of the EU, the Kadi cases occupy a special place. The scope of the application of Article 46 is limited, and the application of the Charter is still not used to its full potential, and too few citizens are even aware of it. The Commission intends to present a strategy that would improve the use and awareness of the Charter. By the middle of 2020, the UK’s withdrawal from the EU had become acrimonious. One issue that still begs the ...

The Euro Area crisis raised numerous questions about the legitimacy of the EU as a justified power-holder. If the legitimacy of the European Commission, European Parliament and the European Central Bank were widely commented and criticized in EU studies during the Great Recession, the Court of Justice of the European Union (CJEU) remained absent in these debates, even if the Court was the heart of tensions surrounding the adoption of the European Stability Mechanism and the use of "non-standard measures" by the ECB. This paper aims at developing a conceptual framework to understand the legitimacy of the CJEU and will use the Euro Area Crisis as a crucial case study. Scholars usually distinguish between the normative side of legitimacy (what standards ought to be respected by the power holder) and its sociological side (how the “audience” believes an authority to be legitimate): if the former is well developed and has been a raison d’être in EU legal scholarship for decades, the latter received scarce attention in the literature. If the relationship between the CJEU and national courts (with a focus on the preliminary reference procedure) is still, albeit with diverging results, the focus of inquiries on the Court, it tells us little about what the ‘audience’ of the Court is nor does it identify the key stakeholders judges need to get support from. A way to assess sociologically the legitimation processes of the CJEU is to look at how judges justify themselves their decisions and from whom they seek to get approval of their actions. Based on judges’ own writings and the newly published list of external activities of the members of the Court, this paper argues that EU judges interact mainly with a specific audience – corresponding to Vauchez’ “European legal field” (ELF) – via various means to explain their actions and secure an approval they may or not receive with only the publication of judgements. ELF players, acting as legitimacy brokers, also play a role in shaping the Court’s case law via various channels (academic articles, government briefs, conference presentations) and mediate the CJEU’s actions to the broader citizenry (students, domestic legal professionals and public at large). This interactive process allows the Court to gauge the response of the field and to side with the majority or to contain potential controversy within the ELF, fine-tuning eventually its case-law if the majority of stakeholders still disagree with the Court’s doing. The Euro Area crisis constituted a challenge to the Court’s legitimacy, especially regarding the existence of the Outright Monetary Transaction programme (OMT). The period between the referral of the Bundesverfassungsgericht and the final acceptance of the German judges to declare OMT compatible with the Basic Law will be used to display the various interactions between judges and their partners to approve a common solution, despite the unprecedented challenge to the Court’s legitimacy raised by the first ever preliminary reference issued by the German constitutional court.

This contribution addresses the question of how radical right-wing populist parties in Western Europe frame the issue of judicial power. To date, there have been very few in-depth empirical analyses on the topic-a gap that this article aims to fill. The paper will compare two radical right-wing populist parties, the Dutch Freedom Party and the Swiss People's Party, by focusing on party manifestos, parliamentary proceedings and public speeches by their leaders. Our findings show that these parties and leaders tend to undermine the rule of law by calling the impartial position of judges and the autonomy of the judiciary into question in the name of a popular, national and political sovereignism.

Anais do I Colóquio Franco-brasileiro de Direito Constitucional, promovido pela Câmara dos Deputados, Embaixada da França no Brasil e Associação dos Consultores Legislativos e de Orçamento da Câmara dos Deputados (ASLEGIS). Câmara dos Deputados, Brasília, maio de 2019.
Actes du I Colloque franco-brésilien de droit constitutionnel. "La démocratie: entre représentation et juridiction". Chambre des députés, Brasília, mai 2019.
Annals of the First Franco-Brazilian Colloquium on Constitutional Law. "Democracy: between representation and jurisdiction". House of Representatives, Brasília, May 2019.

first view of the case note forthcoming in European Constitutional Law Review, no. 4/2018
https://www.cambridge.org/core/journals/european-constitutional-law-review/article/taricco-saga-the-italian-constitutional-court-continues-its-european-journey/F9BEECCF10D1B63B465A27D620E781C3

Italian Constitutional Court, Order of 23 November 2016 no. 24/2017; Judgment of 10 April 2018 no. 115/2018 ECJ 8 September 2015, Case C-105/14, Ivo Taricco and Others; 5 December 2017, Case C-42/17, M.A.S. and M.B.

The European Court of Justice has regularly been accused of activism. Recently, this debate has become more acute thanks to various evolutions (Brexit being only one of them). The charge of activism has no serious basis. However, many academic comments, national judgments and sometimes Advocate Generals’ conclusions reflect a decrease in the quality of the Court’s jurisprudence. This is sometimes confused with activism. It is important to study the causes of this reduced quality and examine the different reforms necessary to correct it. They should allow the European Court of Justice to focus better on its core function in the future.

El pasado miércoles 26 de junio (2013), la Corte Suprema de los Estados Unidos, por 5 votos contra 4 en cada caso, emitió dos sentencias controvertidas. Las mismas fueron dictadas a partir de los casos United States v. Windsor y Perry v. Hollingsworth. Debido a la existencia de dudas sobre lo que la Corte explícitamente dijo, además de una gran preocupación por las consecuencias que se han de dar, dentro o fuera de los Estados Unidos de Norteamérica, a continuación explicamos de modo breve lo ocurrido.

Forthcoming, Presidential Studies Quarterly

In Zivotofsky v. Kerry, the Supreme Court engaged in an erroneous and unnecessary debate about the scope and definition of the President’s powers over foreign affairs.  It was unnecessary because the case embodied what was essentially a political question (which the Court chose not to address) concerning the nature of the legislative process. The Court discussed presidential power in terms of erroneous dicta in Youngstown v. Sawyer and U.S. v. Curtiss-Wright that miscast and misinterpret the nature of executive power. The result is a missed opportunity to clarify key aspects of the legislative process and a muddying of the waters concerning the conduct of foreign affairs.

This chapter identifies and critiques two strands of 'legal constitutionalism' in the Irish constitutional tradition: a classical 'minimal state' strand and a contemporary Rawlsian/Dworkinian strand. It argues against both on the basis that, in different ways, they fail to account for the political and contestable nature of rights. The chapter argues for a model of constitutionalism that accounts for the principled contribution that judicial review can make to public deliberation and outcomes, but that similarly accounts for its potential weaknesses.

The article analyses the adaptation of the European judicial system on the Eastern enlargement. At first, we examine changing litigation patterns in preliminary references and infringement actions, the two major inputs of Courts’ work. While the number of preliminary references increased proportionally to the increase of EU citizens, who are potential litigators, the number of infringement actions remain much behind the increase of potential wrongdoers (the Member States). Having mapped out the changes in Court’s input, we look at the internal processes at the Court after the enlargement. Twelve new judges allowed setting up new chambers. That, on the one hand, enhanced the capacity of the Court, on the other hand it has threatened the ability of the Court to provide doctrinal coherence and the ability to promote particular judicial politics. As a reaction, an inner core of judges emerged. New Member States judges were diffused in several chambers without being appointed to leadership positions. Soon, the inner circle of judges on the leadership positions was partly formalized through regular weekly meetings, which gives the core informational advantage and better planning ability. The president of the Court then has increasingly used his managerial powers in order to assure the inner-core control of the decision-making in important cases. Our findings, however, suggest that the core-periphery structure, though it temporarily discriminates new Member States judges, allows for periphery members to move to the core.

A brief article from February 2012 on the Indian Supreme Court's judgment on official malfeasance in the allocation of telecom spectrum. Interesting today because the same judge has delivered what is widely regarded as an atrociously bad judgment criminalising gay love.