The fourth chapter deals with the ECJ’s present role in the EU’s political system and how its procedural and organisational law might need to be adapted to better reflect it. The chapter first explains how in recent years, notably through the Treaty of Lisbon, the ECJ’s mandate has been modified. It argues that the Court is no longer only concerned with ensuring the autonomy and effectiveness of EU law, but that it is also a democratic organ of the EU polity, whose decisions need to be responsive to EU citizens. To ensure democratic responsiveness, the chapter argues, the ECJ’s procedural and organisational law needs to be further developed. The chapter makes concrete proposals by applying the Treaty on European Union’s democratic principles to the ECJ’s procedural and organisational law. It discusses, among other things, the role of the European Parliament in selecting ECJ members the place of NGOs and civil society in ECJ proceedings, the interaction between the Advocate General and the judges, the composition of the ECJ’s chambers and the mechanism for case assignment and make suggestions how to better reflect the concern for the ECJ’s democratic responsiveness.

Lava Jato (Car Wash) was one of the largest corruption trials in the world. The Lava Jato taskforce launched a battle against powerful political actors using legal tools creatively and sought to garner public support by resorting to the media. The chapter examines three examples that illustrate these two strategies and unpacks their legal dimensions. It focuses on three decisions by Sergio Moro, Lava Jato’s most prominent judge: ordering the police to bring former president and 2018 presidential candidate Lula Da Silva in for questioning without a previous request, disclosing a recorded conversation obtained during an investigation against Lula, and making public a plea bargain agreement that incriminated Lula. The chapter outlines the political impact of Moro’s actions and examines them in light of current Brazilian legislation on transparency and accountability for judges’ behaviour. It finds that while transparency is a principle that informs criminal trials in Brazil, Moro pushed the existing rules to their limits to gain public support. At the same time, he attempted to influence public opinion by taking advantage of the discretion the Brazilian inquisitorial criminal system provides judges. The chapter also analyses the limitations of Brazilian legislation to prevent this kind of behaviour and points to the challenges of reforming it. It concludes that while courts’ mobilization of the media and creative use of legal tools may increase anti-corruption accountability, the costs of this strategy outweigh its benefits.

This chapter examines the role and responsibilities of a chief justice. Using the judicial legitimacy values propounded by Richard Devlin and Adam Dodek, we argue that a ‘successful’ chief justice will promote and protect these values as they negotiate and manage the many relational dimensions of the role with other judges, with the executive, the Parliament, the profession, the academy, the media, and the wider public. Our study highlights interpretative disputes, including as to whether an individual chief justice has responded to genuine, as opposed to improperly perceived, threats to judicial values and about how a chief justice might best navigate between the values, particularly as new values, such as representativeness and efficiency, can appear in opposition to more traditional values. Such questions are symptomatic of ongoing disagreement about the fragility of judicial values, particularly independence, as well as the subjective nature of any attempt to evaluate judicial performance. We argue that there is a need for a more developed normative framework to better understand – and critique – the individual choices and actions of chief justices.