In this chapter, I lay out a theory cataloguing the conditions under which international courts may be expected to issue audacious rulings. This theoretical framework relies on previous literature and insights gathered from interviews with experts in and around the Court. The necessary condition for audacious courts is a wide discretionary space within which they may act without fearing repercussions from states. Yet, such a wide discretionary space is not always given; when it is given, states might still attempt to influence courts through direct or indirect means. Such means include closing down courts’ discretionary space and widespread negative feedback, as well as related threats. International courts, in turn, are compelled to realign their priorities to react to or pre-empt such measures. This is a form of trade-off whereby courts adjust their behaviour to ensure continued access to resources and to preserve their reputation and public image. The chapter also introduces additional factors that increase the likelihood of audacious rulings (i.e., proposed new understandings’ congruence with changing societal needs, legal developments external to the regime, and civil society campaigns).

The conclusion identifies the key turning points in the Court’s jurisprudence in light of the established theoretical framework and presents several key findings that further the debate on judicial politics and on the backlash. The main takeaway is that international courts may not always attempt to expand their power. On the contrary, concern for institutional survival or public image may compel them to under-utilize their power. Courts will follow forbearing or selectively forbearing policies to prevent or mitigate political pushback or backlash. They will reserve audacity or selective audacity for moments when they feel safe from political repercussions. Drawing upon my analysis of the Court over five decades, I call for historicizing the current instances of backlash against international courts and liberal institutions. At least in the context of the European Court, an important lesson is that the backlash is not unique to today’s political climate. The Court has seen different episodes of backlash and, as a result, it has forged a resilience strategy to fend off or pre-empt backlash. Such strategies can also be traced in other courts and institutions with delegated authority.