Judicial majoritarianism revisited: 'We, the other Court'?

Twenty years ago, an interesting – and swiftly famous – answer to the legitimacy question in relation to the judicial creation of the EU internal market was offered by Miguel Poiares Maduro. Heavily influenced by the “representation-reinforcing theory of judicial review”, developed by J. H. Ely, and ingeniously entitled “We, the Court”, the book argued that the jurisprudence of the Court of Justice had been seriously misunderstood when identified with neo-liberal deregulation – a phenomenon that Maduro associated with the U.S. American idea of “economic due process”. For instead of protecting minority economic rights against national (democratic) regulation, the European Court showed a “majoritarian activism”. The judicial review of State legislation by the Court was thus characterised as “a kind of [Union] legislative process”, in which the Court operates as a quasi-legislature that judicially harmonises diverse national rules “in accordance with an “ideally drafted” representation of all States’ interest”. How correct was that description then (and now), and what normative arguments did Maduro propose to justify – and limit – the idea of “judicial majoritarianism”? This – late – “review” revisits the central premises of the famous monograph and subjects them – with the benefit of 20 years of hindsight – to critical scrutiny in the hope of re-opening discussions on the legitimacy of and justice in the internal market.