The Apex Court’s Dilemma: Rulemaking Alignment Under Hierarchical and Political Constraints

Under what conditions do apex courts align with lower courts in constructing legal rules? Many theories have modeled how judicial hierarchies influence apex court rulemaking and how these courts adapt to external political pressures. However, prioritization between these competing demands remains unclear. This article examines this tension by investigating how the European Court of Justice's operating conditions influence its alignment with domestic court referrals through legal bases adoption. Using a dataset of over 5,000 referral applications (2008-2023), I employ a causal identification to disentangle effects of hierarchical disengagement, political constraints, and legal information. Contrary to prevailing theory, the chief mechanism by which member states induce misalignment is not credible override threats but provision of alternative legal options. While domestic high court disengagement pressures consistently exert positive effects, they are outweighed by opposing misalignment effects of alternatives. These findings suggest apex court responsiveness to judicial hierarchies is constrained by institutional design.