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? Some scholars posit that apex courts rulemaking is shaped by lower courts’ expectations, while others focus on their responsiveness to external political actors. However, it remains unclear how apex courts prioritize between these competing demands. I examine this tension by investigating how the operating conditions of the European Court of Justice shapes the take-up of the same legal bases when answering domestic court’s referrals. Using a novel dataset of over 5,000 referral applications from 2008 to 2023, I employ a graphical causal identification strategy to disentangle the effects of judicial hierarchy, political constraints, and legal alternatives. Unexpectedly, I find that the chief mechanism of misalignment is not the threat of an override but the provision of alternative legal options. Decisively, this mechanism also tempers the positive alignment effect exerted by domestic high courts.