The Limits of Rebellion: Judges and the Politics of Hierarchy

Abstract

Chapter 4 pivots from daily judicial routine to the bureaucratic politics of hierarchy within civil service judiciaries. Contra the conventional wisdom that applying European law and soliciting theEuropean Court of Justice (ECJ) emancipated lower courts from supreme court control, it argues that the few low-level judges who wield European law to empower themselves are most likely to be positioned within decentralized judiciaries wherein they already enjoy sufficient autonomy and discretion to occasionally promote bottom-up change. European legal integration thus builds upon and is constrained by the hierarchical politics within state judiciaries. To support these claims, the chapter compares the willingness of lower courts to solicit the ECJ and rebel against national law and their superiors in the French administrative courts– a rigid hierarchy under the Council of State– and the French civil courts– a less hierarchical order under the Court of Cassation. For external validity, it concludes with a shadow case study of Germany’s more decentralized administrative judiciary. The chapter speaks to readers interested in the mechanisms of bureaucratic domination within judiciaries, the institutional conditions that enable and quash judicial rebellions, and how hierarchical politics constrain judges’ capacity to serve as agents of change.