“Special situations require extraordinary measures, and the Court of Justice’s recent rulings have been such an unexpected turn. Therefore, let’s see what the Court holds for us.”

In this interview for the Rule of Law section, RevDem Editor Oliver Garner converses with Niels Kirst about the state of the Rule of Law in the USA and the EU. They discuss the recently-leaked Supreme Court draft Opinion which, if passed, would overturn the constitutional right to abortion, and whether this constitutes a form of regression; if the principle of non-regression would prevent EU Member States from following suit; what lessons the EU can learn from how the USA went about establishing a federal government; how the U.S. Supreme Court interprets the “constitutional identity” of the USA; whether or not the EU should engage in similar constitutional interaction to that seen in the USA immediately following the leaked draft Opinion; and if a mechanism akin to the “federal guarantee” clause would work for the EU.

Niels Kirst is a PhD researcher at the School of Law and Government at Dublin City University, and he is currently a visiting scholar at Cardozo School of Law in New York. Niels has previously worked at the Court of Justice of the European Union and the German Foreign Office. His research adopts a socio-legal approach to the jurisprudence of the Court of Justice of the EU during the Rule of Law crisis, which includes comparative analysis with the USA. 

Oliver Garner: You’re currently based in the USA, conducting comparative research on how the EU and US judiciaries deal with Rule of Law backsliding. In the last weeks, the leak of the U.S. Supreme Court’s draft judgment on the constitutional right to abortion has generated headlines. If the Supreme Court were to rescind this right, would this constitute a form of regression? And, on the other hand, do you think that such leaks risk undermining the judiciary and thus the Rule of Law?

Niels Kirst: Yes, indeed, the leaked Opinion of the Supreme Court of the United States is the primary topic at every law school in the U.S., and protests are also happening right now across the country to fight for women’s right to choose.

I think the Supreme Court is currently undergoing a legitimacy crisis, if not a Rule of Law crisis itself. The politicization of the Court in the last decade has led to this situation.

Coming back to your question, overturning the Roe v Wade precedent, which has stood since 1973, and taking away the right for women to decide over their bodies would, in my opinion, constitute a stark regression in the case-law of the Supreme Court.

Whether this would also undermine the U.S. judiciary as a whole is a great question. It would certainly create abortion tourism – women in the U.S. would travel to states where abortion is still legal. Additionally, taking away a precedent and a constitutional right that was standing law for nearly 50 years would mean a further deepening of the legitimacy crisis of the Supreme Court. People would ask themselves what made the Court change its opinion after fifty years, and finally, which rights will be rescinded next?

In fact, in the U.S., there is already talk about the right to gay marriage being rescinded next – specifically the Obergefell decision of 2015. It could, therefore, start a trajectory that could become very dangerous for civil liberties in the U.S.

The Court of Justice of the EU has been active in recent years in protecting Article 2 TEU values more broadly. This has included the development of a principle of “non-regression” from commitments entered into upon accession for Member States. Do you think that such a principle would prevent a Member State constitutional or apex court from issuing a judgment such as the U.S. Supreme Court’s upcoming judgment, if were to remove fundamental rights of individuals?

This is a great question. In the last few years, we have witnessed the constitutionalization of the Art. 2 TEU values via the Court of Justice of the European Union. Last year, the Republikka ruling was crucial; coming as a preliminary reference from Malta, the Court of Justice pronounced that Member States cannot slide back on the fundamental rights standards they achieved during their accession to the E.U.

For example, the Copenhagen Criteria of 1993 stipulate specific Rule of Law standards, including the independence of the judiciary and, indeed, the principle that Member States may not rescind those standards. 

Whether this would prevent a Member State’s constitutional courts from issuing a judgment such as the U.S. Supreme Court is difficult to guess. Unfortunately, I do not think it would, as we have already witnessed similar developments.

The Polish Constitutional Tribunal’s ruling from last year [K 3/21] showed that a Member State’s constitutional court is willing to declare certain parts of the Treaties as inapplicable within their domestic legal order. In 2020, the same Court rolled back the right of women to choose; it further restricted abortion rights and made it nearly impossible to get legal abortion in Poland. 

So, we are already seeing a similar trend in some Member States. Of course, the right to legal abortion is not a matter that falls within the competencies of the EU. Therefore, the EU’s hands are bound on this – despite a non-enforceable Resolution [on the right to abortion] by the European Parliament.

But after Ireland was the last Member State to enable legal abortion in 2018, now Poland has slid back on that right to choose.

That’s a stark reminder that Member States of the European Union also face the same issues that we’ve seen reported upon in the U.S. in the last few weeks. I can imagine that, if we had a situation where such a judgement were issued, and the EU was seen as becoming involved or intervening, this would create more tension in terms of the Kompetenz-Kompetenz and primary clashes.

A vital part of the Court of Justice’s recent case law has been on effective legal protection under Article 19 TEU. Are there lessons from the U.S. experience regarding how the Supreme Court ensured respect for the Rule of Law across the states following the establishment of the federal state?

Your question strikes at the core of my current research project in the USA. I have been comparing the jurisprudential history of the Supreme Court in dealing with Rule of Law abuses in the U.S. states with the CJEU’s position in the current Rule of Law crisis.

I found that the legitimacy of the Supreme Court was not a given at its inception, and that different challenges to the Supreme Court’s supremacy and enforcement of its judgements arose in the early years of the United States.

Turning to the Supreme Court’s jurisprudence, most listeners will know that Marbury v Madison in 1803 established the principle of the Rule of Law in the USA. However, through my research, I can show that this was a merely procedural notion of the Rule of Law, and it would not establish fundamental rights for all people living on U.S. soil at that point.

In fact, in the infamous Dred Scott decision of 1857, the Supreme Court gave its blessing to slavery in the Southern states and stripped African Americans of their citizenship rights. Even after the U.S. Civil War, which ended slavery in 1865, the Supreme Court would, in the Plessy v Ferguson decision in 1896, establish the “separate but equal doctrine”, which allowed states in the South to continue their practice of racial discrimination in all areas of the public life – the so-called “Jim Crow” laws.

Only after World War II, with Brown v Board of Education in 1954, would the Supreme Court eventually eradicate all forms of [legalized] racial discrimination in the U.S. However, this decision took years and required the help of the U.S. Government to be fully implemented across the South.

So it took a long time for the Supreme Court to adopt a substantial notion of the Rule of Law and to enforce it throughout the United States.  The support of the two other branches of government – the legislative and executive branches – is necessary for an apex court to enforce the Rule of Law in recalcitrant states.

Developing this point, could the U.S. approach of establishing “incorporation” of federal rights in state legislatures without insisting on a federal “supremacy” clause be instructive for how the Court of Justice of the EU and Member State apex courts could resolve further clashes over the primacy of EU law in the future?

The U.S. Supreme Court started incorporating federal rights with the Gitlow v New York decision in 1925. The doctrine of incorporation allowed U.S. citizens to invoke federal constitutional rights against the U.S. states.

Laurent Pech & Sébastien Platon have argued that the seminal Portuguese Judges ruling of the Court of Justice in 2018 is comparable to this insofar as the EU Treaty right to effective judicial protection is invocable against the Member States.

I concur with their argument. The Court of Justice of the EU’s jurisprudence since the Portuguese Judges ruling is crucial for protecting fundamental rights and the Rule of Law in the EU.  I would also argue that the incremental incorporation of the rights found in the EU Charter of Fundamental Rights displays a process of incorporation in the EU. For example, in the SEGRO ruling in 2018, the European Court of Justice protected the right to property of EU citizens in the Member States.

However, I am not sure if this resolves the clash between national constitutional courts and the Court of Justice. In an ideal world, they would complement each other instead of rivalling each other. 

Recently, for example, the German Bundesverfassungsgericht has started to use the Charter of Fundamental Rights standards in its case law. I hope we will see more of that in the future.

As discussed in our recent podcast with CEU Democracy Institute co-director Renáta  Uitz, the President of the CJEU Koen Lenaerts has developed in extra-judicial remarks the conception from the budget conditionality regulation judgment that the Article 2 TEU values constitute the “identity” of the E.U. Has the U.S. Supreme Court made similar pronouncements upon what may now be regarded as the “constitutional identity” of the USA?

The Conditionality Regulation of 2020 is indeed a landmark piece of legislation because – for the first time – it spells out the attributes of the value of the Rule of Law in the EU – it gives the Rule of Law a definition – even though it’s only in connection with EU budgetary law.

And, as the Court of Justice’s President Koen Lenaerts pointed out in the recent RECONNECT conference, the judgment on the validity of the Conditionality Regulation establishes the constitutional identity of the Union as the values of Art. 2 TEU.

This is a remarkable development and will eventually mark a new stage of European integration triggered by the Court. The ruling establishes that Member State’s national identity cannot override the Union’s constitutional identity as stipulated in Art. 2 TEU. This finding has broad implications, and we will see how this is taken by the backsliding Member States.

In comparison, in the U.S. I would argue that liberty and citizenship rights are the overarching values of the U.S. Constitution, considering that the U.S. Constitution is nearly 250 years old and does not encompass “modern” rights and values as we can find them in the EU Treaties, which are only 65 years old. Therefore, it was for the Supreme Court to adapt the Constitution to the modern world. And it did so in many landmark judgements.

The most progressive era of the Supreme Court was the Warren Court from 1953 to 1969. However, recently the Supreme Court has shifted to following conservative values. This is because the Supreme Court decisions are underpinned by different interpretative theories of the different Justices, who today are mostly conservative.

Among them is the so-called “originalist theory”, which seeks to interpret constitutional rights in the form that they were conceived when the U.S. Constitution was written. The D.C. v Heller decision about gun rights of 2008 is an excellent example of this originalist understanding of the U.S. Constitution. In contrast, the Court of Justice of the EU is famous for its purposive interpretation style, which we could see, for example, in the Portuguese Judges ruling.

However, leaving interpretative theories aside, I think the Court of Justice of the EU’s shift toward a European constitutional identity is vital as it could be crucial for solving the Rule of Law backsliding in the Member States.

It’s interesting how you’re comparing originalist interpretation with “teleological interpretation” by the Court of Justice of the EU. Something I mentioned in our podcast episode with Renáta is whether a shift has occurred where the Court of Justice of the EU has moved from what may have been the prior  constitutional ideal of an “ever closer union among the peoples of Europe”, which is something specific to the EU and European integration, to now moving towards these far more general values, as found in Article 2 of democracy, Rule of Law, solidarity etc. which most constitutional systems would argue form parts of their bedrock. 

One question I had coming out of this was that we saw a reaction after the leak of the U.S. Supreme Court Judgement where almost immediately there was a vote in the Senate on this issue. I wonder whether this could be seen as a positive example of constitutional interaction, whereby in reaction to judicial pronouncements that Democrats or Republicans may think are undermining rights, we have action from the legislature. 

Do you think it would be desirable if we had similarly reactive exercises by the legislature in the EU context? Or do you think that this would be something that could undermine the authority of the Court of Justice of the EU?

I think that would be desirable, and we can already see it as the European Parliament continues to be very vocal on Rule of Law issues. They actually issued three reports on the Rule of Law situation in Hungary, and I would say that the European Parliament is the most active institution when it comes to this. However, the competences of the European Parliament are not as wide-ranging as a national parliament, and therefore it is kind of blocked in its efforts. 

I think it’s also important that U.S. legislators react to this unprecedented situation, because it’s the first time ever that a Supreme Court Justice Draft Opinion was leaked. It’s never happened before in the history of the Supreme Court. So, the Court is really in a legitimacy crisis.

However, there is unfortunately not a consensus in the legislative organs, in the House of Representatives and the Senate, to establish federal abortion rights, or a federal right for women to choose. So that’s a reason why it’s all placed upon the court. Due to the divisive nature of U.S. politics there is no consensus on this. If this ruling eventually comes out in a couple of months, it would really undermine the legitimacy of the court. We will see how the public in the U.S. will react to that.

The conclusion of the Conference on the Future of Europe has led to arguments by the Italian Prime Minister that we should have a more federal Europe, and Treaty revisions proposed by the European Parliament, including the replacement of all unanimity voting with Qualified Majority Voting. If this is a “constitutional moment” for the EU, are there lessons to be learned again from the U.S. experience? Most concretely, would a mechanism akin to the “Federal Guarantee clause” work for the EU?

I guess Treaty change is one of the top topics discussed in this podcast, and it is, indeed, a fascinating one. If we borrow the term of Bruce Ackerman and describe the Portuguese Judges ruling and the follow-up developments as a “constitutional moment” of EU law, there are lessons to be learned.

Wide-ranging public support in the society is needed, and it takes time to implement a new constitutional understanding. Only time will tell if the Rule of Law crisis will be such a moment.

However, regarding Mario Draghi’s remarks, I am convinced that a general shift to Qualified Majority Voting in the Council would help to halt the Rule of Law backsliding in some Member States and strengthen the capability of the EU to deal with Rule of Law backsliding. It would also be important for the external dimension of the EU, because we can right now see with the sanctions towards Russia that unanimity really undermines the external legitimacy of the Union. 

Turning now to the second part of your question on the “Federal Guarantee clause” –  the drafters of the U.S. Constitution, specifically James Madison, were aware of tendencies within the newly formed United States that would threaten the initial (republican) form of government. Therefore, they enshrined a safeguard in the form of a republican form of government clause in the Constitution. This safeguard is today known as the Guarantee Clause, found in Article IV, Section 4 of the U.S. Constitution.

The problem with this clause, which could indeed be invoked, for example, against extreme forms of “gerrymandering”, is that the current Roberts Court has declared the clause to be non-justiciable. Therefore, a change of the opinion of the Supreme Court would be needed to apply it in the U.S.

However, in the EU, scholars such as John Cotter, Daniel Kelemen, and David Krappitz and myself have argued that Art. 10 TEU could be interpreted as the EU’s version of a republican form of government clause.

Art. 10 TEU stipulates the protection of democratic accountability within the European Union, even in national parliaments. If a Member State alters its electoral system to create an autocracy, this clause could come into play.

However, as I understand the current Court of Justice, it seems unlikely that the Court will soon take that turn. It seems to me that the Court regards Art. 7 TEU as the appropriate mechanism in such a case. But special situations require extraordinary measures, and the Portuguese Judges ruling was such an unexpected turn. Therefore, let’s see what the Court holds for us.

This transcript has been edited for length and clarity

In collaboration with Hannah Vos