The Role of the Judiciary in Times of Emergency: Judicial Review of Counter-Terrorism Measures in the United States Supreme Court and the European Court of Justice

Summary:

This article is a comparative study of three decisions of the United States Supreme Court (USSCt) and three decisions of the European Court of Justice (ECJ), reviewing the constitutionality of executive and legislative measures adopted by the United States (US) and the European Union (EU) in the fight against terrorism. The purpose of the article to elaborate an analytical framework to explain the role of the supreme American and European judiciaries in times of emergency. Special focus is placed on the Kadi case.

The first section will assess several methodological issues arising from a comparative analysis of the constitutional review of counter-terrorism measures by the USSCt and the ECJ. The following sections will discuss three judicial phases, analysing in parallel one ruling of the USSCt and one of the ECJ. In the final section, the empirical evidence is used to design a dynamic model of the role of the judiciary in times of emergency.

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