Crafting the language of borders: The European Court of Justice's strategic opinion writing in rights cases

Abstract

Courts, particularly those with the power of constitutional review, engage in supplementary lawmaking. Like other policymakers, judges seek the proper interpretation and implementation of their decisions. Research on the United States of America (U.S.) Supreme Court indicates that it strategically alters its language to obtain better compliance, but little is known about whether international courts do the same. We test the generalizability of these findings by examining the opinion-writing tactics of another powerful court, the Court of Justice of the European Union (CJEU), in a highly salient policy area, citizenship rights. Like the U.S. High Court, the CJEU must guide judges in interpreting constitutional law. In the European Union (EU) context, this entails directing Member State judges through the preliminary reference procedure, a form of indirect supranational judicial review. We expect that the CJEU will carefully craft the language of its opinions to obtain the cooperation of national judges in this area of law. Our findings indicate that, like the U.S. Supreme Court, the CJEU strategically alters its words in anticipation of this key audience's reactions to its decisions, and that the court's strategies may undermine EU citizens' rights in the long term.