The consolidation of authoritarian populism depicting democratically elected leaders and parties aggrandizing their power through the routines of the democratic process has gained significant traction in the last decade. It re-engages the question of the role of courts in protecting the democratic process by reviewing the work of governing institutions prone to abuse. However, the question has for now mostly been asked in the context of a ‘self-contained’ constitutional democracy. In this article, I transpose the question onto the plane of the European Court of Human Rights (ECtHR). Central to this transposition is the conceptual challenge that while the ECtHR adjudicates rights over and above the state, in the Court’s case law these rights are significantly defined in procedural terms, often deriving institutional implications that resemble the prescriptions of the ‘political process theory’ of judicial review originally put by John Hart Ely in the context of the US constitution and recently expanded by Stephen Gardbaum and other scholars in comparative constitutional law. In surveying thematic portions of the case law, I aim to show that the concerns of ‘political process theory’ regarding institutions and procedures as core subjects of judicial review can take the route of rights. I argue that the ECtHR’s account of ‘democratic society’ provides an exemplar of such rights-based political process theory in the European human rights context and discuss both its merits and limits.

Standing requirements before the European Court of Human Rights pose significant hurdles for plaintiffs in climate litigation, exposing deep tensions between judicial restraint and legal accountability, redress for vulnerable groups and discrete access to justice. In KlimaSeniorinnen, the Court advanced an evolutive interpretation of victim status and legal representation standards ‘in the light of conditions in contemporary society’, drawing extensively on the international legal framework through the principle of systemic integration. The key doctrinal takeaway is the articulation of justiciable minimum standards of due diligence for climate mitigation under Article 8 of the European Convention on Human Rights, situated at the intersection of nearly unattainable individual victimhood and a substantive evolution of locus standi for demonstrably affected vulnerable groups. Although the Court’s reasoning strains several doctrinal conundrums – particularly regarding the interplay between individual victim status and legal representation – it ultimately constitutes a principled increment of legal accountability, commensurate with the necessities brought forward by the prospect of climate collapse.

In this Article I argue that the European Court of Human Rights (ECtHR) exercises an under-acknowledged power to shape the constitutional norms of the EU’s legal order—a power that extends beyond that court’s role in influencing the interpretation of fundamental rights. In establishing this claim, I focus, in particular, on the ECtHR’s jurisprudence concerning Article 267 of the Treaty on the Functioning of the European Union (TFEU), which evidences a pattern of increasingly direct dialogue between the Court of Justice of the European Union (CJEU) and ECtHR on issues of EU constitutional law. I argue that this shift has positioned the ECtHR as a shadow constitutional court of the Union’s legal order—a development which now obliges the Union to confront the practical reality that, with or without formal accession by the EU to the European Convention on Human Rights (ECHR), the Union’s constitutional order is fundamentally integrated with the Convention and its court.

One of the most striking developments in the case law of the European Court of Human Rights Court over the past decade is the development a new doctrine of subsidiarity that has been presented as democracy-enhancing. This article explores this turn to subsidiarity in European human rights to assess the extent to which it is positively contributing to democracy. The article does so by first unpacking the notion of subsidiarity, arguing that it is a composite notion that has organisational, legal and democratic elements. Against this background, the article examines the place and space of subsidiarity in the European human rights system, finding that subsidiarity is overwhelmingly concerned with organisational matters. It does speak to democracy but only in a small subset of cases, which typically involve well-functioning democracies. This also means that the new democracy-enhancing doctrine does very little work in the context of democratically backsliding member states.

In Employment Division v. Smith (1990), the U.S. Supreme Court held that neutral and generally applicable laws would no longer receive strict scrutiny review. Many feared that Smith had severely truncated the protection of the First Amendment Free Exercise Clause. Three years later, however, in a controversial Santerian slaughtering case, Douglas Laycock persuaded a unanimous Supreme Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah to highlight an important limitation on the Smith neutrality standard. Both “masked as well as overt” government hostility, targeting, or discrimination against religion are constitutionally “suspect,” Lukumi made clear. Recent Supreme Court free exercise cases have emphasized this limitation. Over the past decade, the European Court of Human Rights and the Court of Justice of the European Union are replaying the same story that played out in the U.S. Supreme Court in the 1980s and 1990s and have gradually weakened their religious freedom provisions into a guarantee of government neutrality alone. In their most recent cases, these pan-European high courts have upheld blatantly discriminatory regulations of Muslim and Jewish ritual slaughtering, favoring animal welfare over religious freedom. These courts need to take a lesson from Laycock’s argument in Lukumi that neutrality requires states not to take sides for or against religion and not to uphold laws that have the mere pretense of neutrality while targeting the core practices of religious minorities.

In the face of an escalating climate crisis, climate litigation is increasingly being utilized as a means to set boundaries to States’ lack of climate action. In what stands as one of the most consequential climate cases to date, the European Court of Human Rights (ECtHR) determined in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland that individuals have a human right to protection against the adverse effects of climate change. Through an in-depth analysis of the judgment, this Article explains the Court’s ruling that effective protection of human rights requires States to base their emissions reduction targets on a quantification of their fair share national carbon budgets in relation to the remaining global carbon budget for 1.5oC. This has far-reaching implications for the scrutiny of States’ emissions reduction targets. The Article shows that, as a consequence of the rapidly depleting remaining carbon budget for 1.5oC, States may no longer be able to remain within their fair share through domestic reductions alone. In such circumstances, States need to contribute to emissions reductions outside of their territory and reduce their domestic emissions at their highest level of ambition.

Judges on apex courts sit in panels to resolve the most consequential legal issues within their jurisdiction. On occasion, these panels are closely split on the outcome. Where that split reflects only one judicial opinion or vote, the decision is rendered by a ‘bare majority’. That decisions with the potential for seismic legal, political and social importance can be made by such slim margins has received increasing academic attention in recent years. Yet, many of the responses to this ‘bare majority puzzle’ are of a conceptual nature, grounded in theory and addressing the normative implications. This article adds a perspective on the practice of bare majorities to this wider discussion. It does so by drawing on the practice of bare majorities at the Grand Chamber of the European Court of Human Rights and identifying six questions of salience to the nature, style and implications of the division. Engagement with these questions demonstrates that the theoretical discomfort posed by bare majorities is not always replicated in their practice.

The relationship between the European Court of Human Rights and the ideal of democracy is a complex one: Convention states tend to understand it in terms of the supremacy of national democratic arrangements, whereas the Court has conceived of the relationship in more substantive procedural terms involving Convention rights as interpreted and promoted by the Court. In recent political debates the ideal of democracy has been instrumentalized to attack the authority of the Court based on the former understanding, such that its contribution to democratic ideals has become muted. Against this background, this article seeks to rebalance political debates about the relationship between democracy and the ECtHR by clarifying ways in which we can understand the Court as playing a democratic role based on the republican democracy of Phillip Pettit. It highlights elements of Pettit’s republican democracy relevant to the Court and analyses features of the Court and its practice which can be understood as expressing those elements. In doing so it contributes to ongoing debates about the relationship between democracy and the Court with a view to protecting and promoting the ideal of democracy in an era in which it is increasingly under threat.

As nationalist sentiments gain traction globally, the attitudinal and institutional foundations of the international liberal order face new challenges. One manifestation of this trend is the growing backlash against international courts. Defenders of the liberal order struggle to articulate compelling reasons for why states, and their citizens, should continue delegating authority to international institutions. This article probes the effectiveness of arguments that emphasise the appropriateness and benefits of cooperation in containing preferences for backlash among the mass public. We rely on IR theories that explain why elites create international institutions to derive three sets of arguments that could be deployed to boost support for international courts. We then use experimental methods to test their impact on support for backlash against the European Court of Human Rights in Britain (ECtHR). First, in line with principal‐agent models of delegation, we find that information about the court's reliability as an ‘agent’ boosts support for the ECtHR, but less so information that signals Britain's status as a principal. Second, in line with constructivist approaches, associating support for the court with the position of an in‐group state like Denmark, and opposition with an out‐group state like Russia, also elicits more positive attitudes. This finding points to the importance of ‘blame by association’ and cues of in/out‐group identity in building support for cooperation. The effect is stronger when we increase social pressure by providing information about social attitudes towards Denmark and Russia in Britain, where the public overwhelmingly trusts the Danes and distrusts the Russians. Finally, in contrast to Liberal explanations for the creation of the ECtHR, the study finds no evidence that highlighting the court's mission to promote democracy and international peace contains backlash. We show that the positive effects of the first two arguments are not driven by pre‐treatment attitudes such as political sophistication, patriotism, internationalism, institutional trust or political preferences.

European Court of Justice and European Court of Human Rights rulings create a form of transnational social citizenship. European judicial activism appears reminiscent of US politics, but is rooted in distinctively European commitments to solidarity. Yet because rights rely on domestic programmes, social citizenship remains vulnerable to retrenchment. This article argues that reforms threaten to transform European social citizenship into a civil citizenship that moves Europe closer to the minimalist US model of social protection.