This chapter first introduces the main debates on the legitimacy of judicial review. It then turns to the most problematic examples of non-accountable decision-making that recently took place in the EMU, causing problems for individuals accessing fora of legal accountability, most visibly in the reduction of the protection of fundamental rights. The purpose of this exercise is to offer a sneak-peek preview of what went wrong, how (the lack of) judicial review contributed to this problem, and why traditional arguments against judicial review do not work in this context. Given that the EMU is an area characterised by high redistributive effects coupled with a wide discretion on the part of decision-makers, courts are in the perfect position to ensure that such decisions meet the Treaty objectives of the common interest. Any review of decisions in the EMU entails two duties. First, the starting point for courts must be an assumption of a full review. Second, decision-makers have an extensive duty of giving reasons for their decisions and put to the court the arguments on the nature of their discretion and how they used it. The chapter closes with conclusions on how the proposed framework will be used in the book.

I use a puzzling episode of judicial interpretation from South Africa to motivate the theoretical question about why judges sometimes alter their commitments to some legal interpretations but not others. I examine existing scholarship, which tends to portray judges as behaving in four distinct ways when engaged in legal interpretation: as guardians; as principled interpreters; as regime partners; or as strategic interpretors or deliberators. I argue that each of these portrayals falls short in explaining judges' shifting commitments to legal interpretation. Instead, I argue that judges are best understood as behaving as deliberative partners by combining key theoretical aspects of existing work into a novel theoretical position. I then outline the unique observable implications of each position and propose a fair test that examines judicial behavior in response to political parties' shifting stances on equality rights during key moments in Indian, South African, and American history.