Democracy, judicialisation and the emergence of the Supreme Court as a policy-maker in Mexico (original) (raw)
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Mexican Supreme Court at Crossroads: Three Acts of Constitutional Politics
Vienna Journal of International Constitutional Law, 2021
Since 2018, Mexico's Supreme Court is facing a critical juncture. The new distribution of political power and the distinctive platform of the governing coalition endowed with massive popular support has forced the Court to redefine its role as a constitutional tribunal within unprecedented dynamics of constitutional politics. Such juncture can be summarized as being at crossroads, between desirable affirmation, strategic accommodation and concerning subordination.
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.
Judicial Reform as Political Insurance: Argentina, Peru, and Mexico in the 1990s - by Finkel, Jodi S
Bulletin of Latin American Research, 2010
Judicial Reform as Political Insurance addresses a question central to the comparative judicial politics literature, but one that has garnered little attention in scholarship on Latin America: why do political leaders delegate power to courts? Finkel's approach to the question moves the theoretical debate forward: she queries not only why politicians engage in reforms that limit their own latitude, but when such reforms actually have an effect on judicial power. She addresses the second question by explaining that
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.
Forthcoming in Andrea Castagnola and Saúl López-Noriega (eds.): Judicial Politics in Mexico: The Supreme Court and the Transition to Democracy. New York, Routledge (2017). This is a chapter that will be published in a book about the role of the Supreme Court of Mexico in the process of democratic consolidation in the country. In it, I describe remarkable changes in the Supreme Court performance over these last years (markedly, how it has partly set aside traditional views and has started to protect people's rights) but I argue that it confronts serious problems to articulate and publicly transmit a minimally coherent and understandable set of legal criteria. This trait --that I call "decisional fuzziness" is linked, I contend, to features of internal and external institutional design of the court. The paper intends to show, then, that inherited institutional structures and practices --which are often traceable far in the past--- hinder the adequate performance of the roles and functions the Supreme Court of Mexico will be called to play in these incoming years.
2006
Our central question is: Under what circumstances can we expect a theoretically informed and reproducible measure of judicial independence de jure to be a good proxy for what we can expect to happen in reality? We argue that whether the de jure measure can be considered a good proxy for, to overestimate or to underestimate, judicial independence in reality depends on the distribution of power among the ruling political groups. Having identified those political conditions, and what Supreme Court judges can expect from them, we explore what is the likely behavior of these judges regarding decisions on cases where the government violates the rule of law or horizontal accountability. Having laid out our theoretical expectations in six different scenarios, we proceed to illustrate them using Mexico Argentina, and Chile.. JUSTICE IN MEXICO PROJECT W ORKING PAPER SERIES TRANS-BORDER INSTITUTE, USD POZAS AND RIOS-2 When and Why "Law" and "Reality" Coincide?
2018 - Supreme Court, Institutional Change and Authoritarian ARG BR - Razon Critica - Colombia..pdf
ABSTRACT Over the past century, Latin America experienced important political changes. Many countries in the region –such as Argentina and Brazil– faced both harsh authoritarian governments and flourishing democracies. In these two countries, the constant changes of political regimes also brought important institutional changes in the Judicial Power, particularly in the Supreme Court. This paper will analyze the institutional change of the Supreme Court from a comparative perspective. By looking at the cases of Argentina and Brazil, we will review the trajectory of both High Courts in a violent political moment (1964 - 1985). In particular, we will analyze the ways in which these courts were altered in moments of authoritarian regimes. Our analysis will focus on the means used to alter each Court and the objectives of these modifications. Although the cases share some similarities, it is fundamental to remark that each case has its particular trajectory. To understand this, we will analyze the institutional transformation of the High Courts in Argentina and Brazil from a historicaperspective, always keeping in mind the violent contexts in which these changes tend to occur.
Judicial Power and Democracy in Latin America The relationship between the spheres of the State
2019
At present, academics from diverse disciplines analyze the political scenario in Latin America making reference to the protagonism of the Judicial Power and the so-called "judicialization of politics". This process would refer to the treatment and resolution of matters that "traditionally" would have been decided from the political system and that, in the last two decades, would have passed into the hands of judges. The displacement of the protagonism from the Executive and Legislative to the Judicial Power would have as consequence imbalances in the constitutional structures of the Latin American democratic States. From the perspective of the Anthropology of Politics, we are interested in problematizing the conceptualization of the "judicialization of politics". Based on an ethnographic investigation carried out in the Judicial Power with magistrates from the city of Córdoba, Argentina, we attempt to rethink the relationship between the powers of the State. In particular, to reflect on the presupposed autonomy of the spheres of the State established in the National Constitution as a founding principle of the republican form. In an effort to complex current debates regarding the place of the Judicial Branch in democratic systems, we present research results referring to the everyday construction of judicial administration. Evidence about the close relations between magistrates, members of the Executive and legislators, in different historical periods, would make the division of government spheres blurred and would orient our gaze on the porosity of the borders between the Powers of the State.