Beyond the Façade: Institutional Engineering and Potemkin Courts in Latin America, 1975-2009 (original) (raw)
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The Legacies of Judicial Instability in Latin America
Students of institutions have identified a pattern of ―serial replacement,‖ distinctive of Latin American countries in which institutional change has become frequent as well as radical. Patterns of serial replacement underlie wellknown ―traps‖ of deinstitutionalization: military coups beget more coups, democratic breakdowns make breakdowns more likely, constitutional replacements encourage the adoption of new constitutions, inter-branch conflicts feed further conflicts, and so on. In this paper we develop a theory of serial replacement and apply it to explain cycles of judicial instability in 18 Latin American countries. Using a novel dataset covering more than 3,000 Supreme Court and Constitutional Tribunal justices between 1900 and 2010, we show that political attempts to reshuffle Supreme Courts and Constitutional Tribunals encourage new attempts to reshuffle the high courts in later years, creating a sequential pattern of judicial instability.
Comparative constitutional law scholarship has largely ignored political institutions. It has therefore failed to realize that radical differences in the configuration of political institutions should bear upon the way courts do their jobs. Parting from a case study of the Colombian Constitutional Court, this paper develops a theory of judicial role focused on political context, and particularly on party systems. Colombian parties are unstable and poorly tied to civil society, therefore Congress has difficulty initiating and monitoring the enforcement of policy, as well as checking presidential power. For that reason, the Constitutional Court has responded by taking many of these functions into its own hands. We argue that the Colombian Court’s actions are sensible given the country’s institutional context, even though virtually all existing theories of judicial role in comparative public law would find this kind of legislative-substitution inappropriate. Those theories rest upon assumptions about political institutions that do not hold true in many of the developing countries.
Judges as equilibrists: Explaining judicial activism in Latin America
International Journal of Constitutional Law, 2022
Intense forms of judicial activism have emerged in Latin America in the last three decades. Judges dictated structural remedies decisions (SRDs) to create, design, and implement public policies to redress structural human rights violations, implementing permanent judicial monitoring of the policy process. In a region marked by judicial instability, SRDs are risky options for judges. They can be seen as strong challenges to the government and, thus, prompt retaliation. They can also damage judges’ reputations as they might be strongly criticized by influential conservative groups of society that oppose progressive structural reforms. What drives judges to pursue or avoid this kind of risky activism? I propose the equilibrist approach, an alternative model to standard accounts explaining judicial behavior in Latin America. It incorporates the legitimacy-building dimension of the strategic game and predicts some level of assertiveness but one that is careful about the preferences of elites, the mass public, and opinion leaders. I use the institutional yet fragile Argentine Supreme Court to test the model, as it decided several SDRs in the early 2000s.
Courts in Latin American Politics
Oxford Encyclopaedia of Latin American Politics
In the aftermath of the third wave of democratization, Latin American courts left behind decades of subservience, conservatism, and irrelevance, to become central political players. They now serve as arbiters in struggles between the elected branches, and increasingly affirm fundamental rights. Indeed, some rulings champion highly controversial rights and have huge budgetary implications, sending shockwaves across these new democracies. What explains this unprecedented expansion of judicial power? In trying to answer this fundamental question about the functioning of contemporary democracies, scholars of Latin America have developed a truly vibrant and theoretically dynamic body of work, one that makes essential contributions to our knowledge of judicial politics more generally. Some scholars emphasize the importance of formal judicial reforms initiated by politicians, which resulted in more autonomous and politically insulated courts. In so doing, they address a central puzzle in political science: under what conditions are politicians willing to accept limits to their power? Inspired by rational choice theory, other authors zoom in on the dynamics of inter-branch interactions, to arrive at a series of propositions about the type of political environment in which courts are more capable to assert their power. Whereas this approach focuses on the ability of judges to exercise power, a third line of scholarship looks at how ideas about the law and judicial role conceptions affect judges’ willingness to intervene in high-stakes political struggles, championing some values and interests at the expense of others. Finally, more recent work asks whether assertions of judicial power make a difference in terms of rights effectiveness. Understanding the consequences of judicial decisions is essential to establish the extent to which more assertive courts are actually capable of transforming the world around them.
Politics & Policy, 2012
What explains institutional instability in national judicial institutions? Much extant research focuses on de facto institutional instability, emphasizing political motivations behind irregular changes to high court composition. In contrast, I consider the causes for de jure changes made to the Ecuadorian Supreme Court from 1979 to the present, drawing on qualitative and quantitative analyses. I contend that the judicialization of politics and presidential interest in stacking the courts are central explanatory factors, and that changes to the Supreme Court's institutional framework reflect implicit compromises and political arrangements negotiated by strategic political actors. As such, institutional reforms to national judicial institutions may be adopted to ameliorate conflict in the larger political sphere.
Taking Courts Seriously: assessing judicial compliance in Latin America
This paper is a first attempt to assess and develop the primary conditions that lead to judicial compliance in Latin America. Reviewing recent literature about judicial compliance since US studies in the 1960s and through comparative case analysis in Latin American countries, the primary goal is to understand if and how courts are " taken seriously " by their audiences, meaning full-and on-time compliance to their requests. The case selection combine a set of six landmark structural rulings handed down by the highest courts in Colombia, Argentina, and Brazil in the 2000s focused on two public policies: prison and health system. The empirical analysis suggests three main findings: (i) when targeted, judicial lower instances do not comply with courts requests; (ii) courts have significant variation and do not follow a pattern in determining deadlines; and, finally, (iii) vagueness and ambiguity in determinations lead to non-compliance, as previous works have already detected.
What explains institutional instability in national judicial institutions? Much extant research focuses on de facto institutional instability, emphasizing political motivations behind irregular changes to high court composition. In contrast, I consider the causes for de jure changes made to the Ecuadorian Supreme Court from 1979 to the present, drawing on qualitative and quantitative analyses. I contend that the judicialization of politics and presidential interest in stacking the courts are central explanatory factors, and that changes to the Supreme Court’s institutional framework reflect implicit compromises and political arrangements negotiated by strategic political actors. As such, institutional reforms to national judicial institutions may be adopted to ameliorate conflict in the larger political sphere.
Enacting Constitutionalism: The Origins of Independent Judicial Institutions in Latin America
When and why can constitution-making processes be expected to produce an institutional framework that formally serves constitutionalism? Based on a simple and general typology of constituent processes that captures their legal/political character and dynamic nature, constitution-making processes controlled by one cohesive and organized political group (unilateral) can be distinguished from processes controlled by at least two different political groups (multilateral). A sample of eighteen Latin American countries from 1945 to 2005 shows that multilateral constitution making tends to establish institutional frameworks consistent with constitutionalism.