Institutions such as the US Supreme Court and the European Court of Justice in due time have developed a status of supremacy through judicial activism. The main target of the article is to identify the judicial activism exercised by these Courts and to reason its need in the legal order. In the first part the US Supreme Court and the European Court of Justice are placed in the overall polity that they belong to and the development of their status and their characteristics are analyzed. The major concern of the first part is to examine how those declared their supremacy and focus on major cases and their reasoning.
In the second part the extent of the judicial supremacy in each legal order is discussed and its effects in the decision making process are examined. The assumption that judicial activism is acceptable only if it expresses consensus in the legal order is tested and it is argued that up to an extent, Judicial Activism does not distort the political agenda when it expresses the consensus of the legal system. Finally, it is argued that when such activism exceeds the boundaries of the consensus, the other actors in the legal system would eventually react and would limit such activism.
© 2017 by Walter de Gruyter Berlin/Boston