The recent appointment of Amy Coney Barrett to the United States Supreme Court shortly before Election Day has brought a flurry of comments about her ideological leanings and the impact she might have on the position of the Court during a Biden presidency. Yet neither that, nor the partisan wrangling that accompanies judicial appointments, is particularly unusual in the United States, where US Supreme Court justices attract considerable media attention and the influence of ideology is both well documented by a vast body of academic research and fully acknowledged by court watchers.
In comparison to US federal judges, European Union courts labour in relative obscurity. Whether it is about the integration process and the supremacy of EU law, privacy and data protection or anti-competitive practices, EU courts handle cases of considerable significance for Europeans and EU policymakers, easily putting them among the world’s mightiest judiciaries. Yet little is known about the ideology of EU judges and how it might influence the direction of their rulings.
Academic research into the influence of ideology has been hampered by the institutional setup of EU courts, which precludes the disclosure of individual votes and opinions. The secrecy surrounding the internal deliberation process means that most of the techniques employed to investigate judicial ideology in the American context are inapplicable to EU courts. Scholars have thus been left with crude proxies such as the partisan affiliation of the appointing government or the legal tradition of the appointed magistrate to try and track ideological variations and link those to case outcomes.
We just published a study that seeks to shed new light on the effect of ideology on EU courts by using an alternative measure of judicial ideology. We asked 46 legal experts to rate 51 judges of the General Court of the European Union on three dimensions: (1) attitude towards market regulation, (2) attitude towards European integration and (3) legal expertise. We then took the average of these ratings to compute the judicial scores displayed in Figure 1.
Consistent with prevailing perceptions in legal circles, former civil servants (such as French judge Legal or German judge Dittrich) score high whereas judges with a background in private legal practice (including Dutch judge Van der Woude and British judge Forwood) score low on the pro-regulation dimension. Scores on this dimension are also correlated with attributes of the appointing member states, such as perceived ease of doing business and membership of the former Socialist bloc, which suggests systematic cross-national disparities in appointment dynamics.
Drawing on these judicial scores, our study found robust evidence that, in competition and state aid cases, panels with more a pro-regulation median judge favour the European Commission over private litigants.