Strictness and Subsidiarity: An Institutional Perspective on Affirmative Action at the European Court of Justice

Abstract

The move to strict review of gender equality cases by the European Court of Justice raises questions regarding the institutional role of the Court. Comparisons between the ECJ's affirmative action case law and US jurisprudence serve to illuminate the very different role played by the ECJ as the central arbiter of a supranational judiciary. In its readiness to decide contextual issues better left to the national courts, the European Court has taken an "American approach" to affirmative action out of keeping with its role. Closer attention to the dynamics of the Court's partnership with national judiciaries would serve as a step toward a functional conception of judicial subsidiarity.