While the US Senate is currently discussing Samuel Alito, George Bush’s pick for the Supreme Court, conservative European politicians are concerned about attempts by the European Court of Justice (ECJ) to usurp legislative powers. Austrian Chancellor Wolfgang Schüssel’s recent criticism of the ECJ, the European Union's top court, was backed on Wednesday by Anders Fogh Rasmussen, the Prime Minister of Denmark. Like Schüssel, Rasmussen wants the European Constitution to include an explicit restriction of the powers of the ECJ.

Since “Roe v Wade,” the 1973 abortion ruling, America has ceased to be a democracy and has become an oligarchy of nine unelected old men (and women) dressed in robes. Though at times the judiciary may protect citizens against the usurpation of legislative powers by the executive branch of government or by unaccountable and unelected national or supranational bureaucracies, on the whole the judges’ eagerness for political power threatens freedom. In democracies citizens can vote their power-abusing politicians out of office, but not their judges.

Rasmussen told journalists in Copenhagen:

“We all easily have the feeling that [the ECJ] takes decisions of which the basis of the judgements do not fully correspond with what we have agreed as the political basis of the development of the EU.”

He added:

“I keep a critical eye on the court.”

The Danish PM gave no concrete examples of ECJ decisions that he objects to, but socialist Danish politicians have complained about European rulings that lowered the criteria introduced in Danish law regarding the protection of the environment. Today the EU ministers of Justice are meeting informally in Vienna to discuss the consequences of a controversial 2005 ECJ ruling.

Two weeks ago Schüssel opened the debate about the role of the court. The Austrian Chancellor, who presides the EU meetings during the first half of 2006, called for the debate on the future of the EU to focus not only on the fate of the EU constitution but also on the role of the EU’s justices. On 31 December, the day before Vienna started its six-month period at the helm of the EU, he told the German newspaper Süddeutsche Zeitung that the unchecked power of the ECJ is problematic:

“When the European court issues retroactive rulings as a matter of principle, one must give this some thought. Our [Austrian] Supreme Court is obliged to take the Constitution into account – does a ruling comply with it? And in our country we always apply the subsidiarity criterion – no-one can stealthily introduce a centralising element into the dispensation of justice. In recent years, however, the [ECJ] has systematically expanded European competencies, even in areas where there is decidedly no [European] community law. Suddenly judgements emerge on the role of women in the German federal army, or on access of foreign students to Austrian colleges – that is clearly national law.”

In July 2005 the EU justices ruled that Austria could not restrict the access of foreign students, many of whom are Germans, to its (government subsidized) universities.