Judicial Reform as Political Insurance: Argentina, Peru, and Mexico in the 1990s - by Finkel, Jodi S (original) (raw)
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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.
Judges as equilibrists: Explaining judicial activism in Latin America
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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.
Latin American Politics and Society, 2005
Sciences Po, 2018
In the context of Latin America, the current acceptance of judicial review as a normal feature of a democratic state remains evident by the turn of the century as most countries in the region adopted (publically institutionalized) forms of judicial review and constitutional control (Carrol and Tiede, 2011). The following analysis reviews two distinct cases within the region with similar sociocultural backgrounds yet with distinct judicial and constitutional frameworks and trajectories informing the respectively different mechanisms for control. The analysis outlines the relationship between judicial review and democratization within a historical-structural examination. Chile offers an excellent case to review the development of judicial review and capacity in the context of democratization after the seventeen-year authoritarian regime under General Augusto Pinochet. Chile underwent massive reforms under the Pinochet regime, including the approval of a new political constitution in 1980, which redrew the obligations and organization of the judiciary with respect to the governing contingency. Since then, the Chilean judiciary along with the ‘independent’ Constitutional Tribunal (Tribunal Constitucional de Chile) provides a useful case study with which to better understand the relationship between institutions and judicial review behavior. Chile’s democratization process is an abrupt transition from complete authoritarianism to an electoral regime as compared to what scholars consider the tepid democratization process in Mexico (Ginsburg, 2016; Magaloni 2006). Mexico’s constitutional framework has outlined mechanisms of judicial review since drafted after the Revolution in 1917. Nevertheless, only after a few recent constitutional reforms could mechanisms of judicial control function properly—with the Mexican Supreme Court (Suprema Corte de Justicia de la Nación) gaining a form of renewed legal legitimization (Ginsburg, 2016). This increase in judicial capacity and control coincided with the demise of the seventy-one-year illiberal hegemony of the Institutional Revolutionary Party (Partido Revolucionario Institucional). In sum, the proposed text focuses on addressing the issue of causality between the development of judicial review mechanisms and transitional regimes in a Chilean and Mexican context.
The Judicialization of Politics in Latin America
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Democracy, judicialisation and the emergence of the Supreme Court as a policy-maker in Mexico
In 1994, four days after taking office, Ernesto Zedillo, the last president to govern Mexico emerging from the once hegemonic National Revolutionary Party, promoted a major redesign of the Supreme Court of Justice that substantially expanded its constitutional review powers and reduced its size from 26 to 11 members. The operation of this more compact and powerful body was left in charge of 11 justices nominated by Zedillo. During the period 1917-1994, the Supreme Court adjudicated only 63 constitutional cases of its exclusive jurisdiction. In contrast, since the reform came into force in 1995, it has been the arena in which more than two thousand constitutional cases have been ultimately settled. Why do courts established under authoritarian rule become effective policy-makers as democracy develops? Using Mexico as a case study and drawing on the strategic approach for the study of courts, this thesis argues that the Supreme Court turned into an effective policy-maker as a result of the convergence of three factors: institutional change (from judicial reform), political fragmentation (from democratisation) and an unprecedented internal stability. Judicial reform set a new institutional framework; political fragmentation triggered the use of constitutional review by political actors; and stability enhanced experience within the Court and prompted justices to more proactively engage in policy-making. Through an appealing case study, a novel research strategy and original evidence consisting of four original datasets and thirty-five elite-interviews, this thesis contributes, first, to the comparative analysis of courts by offering a systematic and comprehensive account of judicial rulings and precedents and their impact both within and beyond judicial boundaries; second, to the judicialisation literature by highlighting the effects of the delegation of power to courts on judicial performance; and third, to the Mexican politics scholarship by providing a re-assessment of the role of the Supreme Court in regime dynamics.
Human Rights Review, 2003
Recent judicial reforms after democratic transition have been substantial and relatively successful in Chile, but much less so in Argentina and Brazil. This article traces this variation in outcomes to the legal strategies of the prior authoritarian regimes. The Brazilian military regime of 1964-1985 was gradualist in its approach to the law, and had a high degree of civilian-military consensus in the legal sphere. It was not highly repressive in its deployment of lethal violence, and this combination of factors contributed to a gradualist and consensual transition in which judicial reform was not placed high on the political agenda. The Argentine case of military rule between 1976 and 1983 was almost the opposite. The military sidestepped and even attacked the judiciary, engaging in almost entirely extrajudicial violence. This generated a "backlash" reform movement after the transition to democracy that was mostly retrospective and only partially successful. In Chile, in contrast, the military engineered a radical break with previous legality, engaged in violent repression, but made considerable efforts to reconstruct a judicial order. It was in the aftermath of this situation that reformers were able to push through a prospective and relatively successful judicial reform. This article's findings suggest that judicial reform may be more likely to succeed where the prior authoritarian regime was both repressive and legalistic, as in Chile, Poland, and South Africa, than where high degrees of repression were applied largely extrajudicially, as in Argentina, Cambodia, and Guatemala, or where the authoritarian regime was legalistic but not highly repressive, as in Brazil, Mexico, and the Philippines.