Judicial Behavior on the Chilean Constitutional Tribunal (original) (raw)
2011, Journal of Empirical Legal Studies
Research on judicial independence suggests that high courts can be designed to serve as external checks on political actors. However, independence from political influence does not necessarily imply incentives to use these powers. Chile's Constitutional Tribunal, while possessing significant powers, has been characterized as generally deferential to political actors. Using rulings from the Tribunal from 1990-2010, we examine whether reforms that increased the number of judges appointed by politicians and expanded the Tribunal's jurisdiction have contributed to a more assertive use of judicial review power. We find that the reforms have not produced an increased tendency to rule laws unconstitutional under abstract review. However, the new appointment structure has nevertheless increased the types of judges relatively more likely to assert this power. Specifically, after the reforms, judges appointed by elected actors were individually more likely to find laws unconstitutional than those appointed by the Supreme Court, especially on cases of concrete review of enacted laws. We also find that cases of abstract review brought by legislators have been especially associated with both unconstitutional rulings and individual judicial votes for unconstitutionality. An independent judiciary is often cited as necessary to provide a check on government power, particularly in consolidating democracies (Russell 2001; Howard 2001). This notion forms the judicial component of "horizontal accountability" (O'Donnell 1994) or "horizontal exchange" (Moreno et al. 2003), making use of appointed bodies to limit the power of elected politicians (Ginsburg 2003). One of the most direct ways of using judicial or quasi-judicial actors to enhance checks on government is via constitutional review, including concrete review of enacted statutes and abstract review of laws prior to their enactment. Judicial review is thought to enhance democracy by protecting unrepresented minority interests (Ely 1980), providing legitimacy to the legislative or law-making process (Vanberg 2005), and balancing the interests behind enacting legislatures with those of current legislatures (Landes & Posner 1975; Whittington 2005). Many nations have adopted specialized constitutional courts for this purpose because of the perception that supreme
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