Do Legislative Agenda-Setters Constrain Judicial Decision-Making? Evidence from the European Union

Abstract

Abstract Judicial review allows courts to serve as a powerful check on policymakers. Nonetheless, courts face the possibility of the legislature overriding unwanted decisions when adjudicating cases in which legislators have an interest. I argue that this threat heightens when courts’ decisions affect legislative agenda-setters that can prioritize bills favoring override, prompting courts to act strategically in response. Leveraging exogenous variation in agenda-setting power from the six-month rotating terms of the Presidency of the Council of the European Union, I provide evidence that the Court of Justice of the European Union strategically delays deciding a case when the member state holding the Presidency expresses interest in the case’s outcome. A difference-in-differences design demonstrates that this effect disappears with the introduction of the Trio Presidency in 2007, which reduced each individual Presidency’s agenda-setting power.