Abstract

The migration studies literature has not reached consensus about how courts and legal norms shape migration policy. Rather than resolving these debates, the European case illustrates the important reality that the relationship between the concepts of migration and judicial power is highly contextual and particular. Even within a continent with a relatively powerful shared commitment to liberal values and individual human rights, as well as longstanding efforts to achieve harmonization of legal precedent, there is tremendous variation over time, cross-nationally, and by sub-issue. However, the European case provides general support for the claim that the historically limited judicial power over migration is increasing in some significant ways. Liberal norms as translated by courts have been used to expand the rights of non-citizens and constrain anti-immigrant politics in Europe, sometimes directly though judicial rulings, and sometimes indirectly through the shaping of discourse about rights. The European case also affirms the political nature of judicial decision-making. Judges are aware of public opinion, and know that their decisions can be controversial. Thus, contemporary European dynamics illustrate how concerns about sovereignty and democratic legitimacy are a powerful force that shapes and constrains the relationship between courts and migration.