Courts in Latin American Politics
Courts in Latin American Politics
- Ezequiel Gonzalez-OcantosEzequiel Gonzalez-OcantosDepartment of Politics and International Relations, University of Oxford
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 shock waves 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 establishing the extent to which more assertive courts are actually capable of transforming the world around them.
- Governance/Political Change
- Political Institutions
- Political Sociology
- Politics, Law, Judiciary
In the aftermath of the third wave of democratization, Latin American courts, especially supreme and constitutional courts, left behind decades of subservience, incompetence, conservatism, and irrelevance to become central political players. Judges now intervene in politics to serve as arbiters between the branches of government in heated debates over policy and the reach of presidents’ or legislatures’ institutional prerogatives. In addition, as individuals in all walks of life began to turn to the courts, framing their grievances as questions of rights violations or deficits in rights effectiveness, courts increasingly responded by expanding the content of constitutionally recognized fundamental rights and, in some cases, creating new entitlements (Helmke & Ríos-Figueroa, 2011). For example, high courts in the region have handed down rulings that challenged the retrenchment of welfare benefits during periods of neoliberal adjustment (Botero, 2017; Brinks & Forbath, 2014; Kapiszewski, 2012; Rodriguez-Garavito,2011); opened the door for the prosecution of former military officers responsible for human rights violations (Gonzalez-Ocantos, 2014); mandated far-reaching reforms to national health care systems or the decontamination of large river basins (Botero 2015; Wilson & Rodríguez-Cordero, 2006); and protected the rights of sexual minorities and internally displaced populations (Díez, 2015; Rodríguez-Garavito & Rodríguez-Franco, 2015). The frequency with which Latin American courts assert their power is unprecedented, often pushing judges into the political wilderness. Indeed, some rulings champion highly controversial rights and have huge budgetary implications, sending shock waves across these new democracies.
What explains this transformation in judicial power? Judicial power “results from the interaction of three different components: the independent input of the court in producing politically significant outcomes that are complied with by other actors” (Ginsburg, 2003, p. 252 (emphasis in the original)). This definition suggests that judicial power increases when courts and their judges (a) enjoy high levels of autonomy during the decision-making process and institutional security in the aftermath of their decisions, (b) expand the scope of their involvement in important political debates, and (c) hand down decisions that alter the behavior of other institutional actors.
This article discusses three bodies of scholarly work that seek to explain why Latin American courts have become more powerful over the last three decades. The first emphasizes the importance of processes of judicial reform initiated by politicians, who thus set up formal institutional structures that insulated and empowered judicial branches. The second approach sees judicial power as a function of the strategic interactions between courts, executives, and legislatures. Whereas these two approaches focus on the ability of judges to exercise power as a result of formal institutional change or the preferences and resources of their interlocutors, the third approach explores the willingness of judges to exercise power. This group of scholars argues that changing ideas about the law, professional values, and judicial role conceptions are critical to understanding why Latin American courts have become more involved in political questions. The article pays special attention to the ideational school, which, despite having made some of the most original contributions to the field of Latin American judicial politics, is often overlooked in reviews of the existing literature. Finally, the article considers scholarly assessments of judicial impact, the third dimension of judicial power. This body of work looks beyond mere compliance with court orders and uses creative fieldwork to assess whether or not judiciaries have a tangible impact on the lives of citizens, increasing levels of rights effectiveness.
The literature reviewed in this article reflects a vibrant field that has experienced a dramatic expansion over the last 20 years. It is theoretically and methodologically diverse, and has made crucial contributions to what we currently know about the determinants of judicial behavior and impact more generally. Indeed, Latin Americans and Latin Americanists have pushed the boundaries of US-based theories in extremely productive directions. It is safe to say that no one can seriously intervene in the comparative analysis of judicial branches if they ignore these contributions.
Formal Judicial Empowerment
A first group of scholars explains the expansion of judicial power by looking at processes for formal institutional change driven by the interests (either immediate or future) of political elites (in the executive or legislative branch).
In the late 1980s, international organizations such as the World Bank, USAID, and the Inter-American Development Bank began to diffuse templates of formal judicial reform across Latin America. Proposals included the constitutionalization of judicial review, in some cases accompanied by the creation of constitutional courts following the post-World War II European model; laws securing judicial tenure and salary stability; the creation of judicial councils and judicial academies; and procedural changes, especially in the area of criminal justice (Carothers, 1999; Finkel, 2008; Hammergren, 1998, 2007). The goal of these reforms was to insulate judicial actors from political pressures, depoliticize appointments and removal processes, enhance the ability of judges to hold bureaucrats and elected officials accountable, professionalize the bench, and reduce backlogs. Reforms were deemed necessary in order to cement the rule of law, secure contracts, and thus guarantee a successful transition to more open market economies (Carothers, 2001).
The diffusion of these reform templates was largely successful, at least on paper. Indeed, Ríos-Figueroa (2011) finds that “Latin American judges now enjoy considerably greater insulation from political pressure than they have in the past” (p. 29). The fact that politicians agreed to strengthen the judiciary, and in so doing limit their own political power, is a puzzle that has preoccupied scholars of Latin American judicial politics. Work in this area focuses on foundational moments during which political elites sponsored far-reaching institutional change, for example, via constitutional reforms.
In order to solve the puzzle, Finkel (2008) conceptualizes reforms as a two-stage process, with an initiation and an implementation phase. She argues that “during the initiation period, when constitutional changes are first enacted, the costs of reform are minimized as they are neither immediate nor certain” (p. 13). As a result, in the early 1990s, incumbents in countries like Peru or Argentina were prepared to negotiate with the opposition reform packages promoted by international financial institutions. These reforms served as a commitment device that allowed presidents to signal their intentions to strengthen the rule of law, and thus secure external economic support during periods of neoliberal change, without actually compromising their power. In this sense, Finkel notes that real judicial empowerment is ultimately determined by the outcome of the implementation phase, when incumbents can act unilaterally because they only need simple legislative majorities to pass the necessary legislation. Relying on the influential insurance model of Ginsburg (2003), Finkel argues that presidents only pushed for implementation legislation that enhanced judicial power when they expected to lose power in the short to medium run, and therefore saw in stronger courts a tool to put checks on their potential successors. This explains why, for example, the PRI (Partido Revolucionario Institucional, or Institutional Revolutionary Party) decisively empowered Mexico’s Supreme Court in the mid-1990s, when the possibility of losing the presidency became all too real, and why presidents in Argentina or Peru did not keep the promises expressed during the initiation phase.
Other scholars offer a different take on the reasons why politicians championed judicial empowerment. For example, in a study of the creation of Colombia’s Constitutional Court in 1991, Nunes (2010) also points to the relationship between neoliberalism and judicial reforms, but places more emphasis on politician’s principled beliefs. President Gaviria “subscribed to the belief that an efficient system of negative rights protection is a precondition for success of market-driven economic growth” (p. 68). And Magaloni’s (2003) analysis of the PRI’s decision to empower the Mexican Supreme Court differs from Finkel’s in that she does not see the reform as an insurance strategy or a signal but rather as an innovation to ensure coordination between political actors. The fragmentation of power that preceded the 2000 democratic transition led the PRI to pass an ambitious constitutional reform in 1994, which granted the Supreme Court the prerogative to mediate conflict in a more plural polity. In particular, the court was given original jurisdiction in matters raised by political actors such as legislatures, parties, and governors. This expansion of review powers turned it into a referee in disputes between the branches of the federal government, and between the federal government and the states, spheres in which the opposition was becoming increasingly salient.
Perhaps the most ambitious effort at producing a unified theory of judicial empowerment is the one undertaken by Brinks and Blass (2018). They are interested in explaining variation in systems of constitutional justice in Latin America following reforms enacted since the 1970s. They note that these reforms stipulate “more or less supermajoritarian coalitions of constitutional governance that contribute to the autonomy of the system” (e.g., the type of majorities needed to appoint constitutional court judges), and “more or less expansive spheres of constitutional justice that contribute to the scope of its authority” (Brinks & Blass, 2018, p. 10). Indeed, “[s]ome are entrusted with full authority to decide some of the most crucial political questions of the day, on behalf of anyone who might apply, while others have a much more limited agenda” (p. 3). Although they also look at the political origins of new constitutional courts or reforms to existing apex tribunals, stating that reformers seek systems of constitutional justice that serve their interests, Brinks and Blass emphasize the joint roles of ideology and the distribution of power in constituent assemblies. Constitutions are statements of the values and priorities of those who have the power to draft them, but politicians in Latin America only entrusted the protection of those values to a robust system of constitutional justice, thus limiting what can be achieved via ordinary politics, when they either felt politically threatened or expected needing the help of this system to advance their agendas in the future.
All of these accounts of formal judicial empowerment focus on foundational moments and assume more or less path-dependent effects on levels of judicial power and political involvement. But the reality of judicial reform is that it is not so static. For example, in an analysis of 11 Latin American countries between 1904 and 2006, Pérez-Liñán and Castagnola (2009; see also Pérez-Liñán & Castagnola, 2016) find huge personnel turnover in the region’s high courts. Incoming presidents often use formal and informal tools to force the resignation of adversarial judges and pack courts with their allies, strongly moderating the possibility of realizing the noble aspirations of formal judicial and constitutional reforms. This instability in part reflects the patterns of regime change since World War II, but also the fact that as courts acquired a more central role in politics after the third wave, they became a coveted bounty. When so much is at stake in the judicial docket, it is only reasonable to expect politicians (and civil society actors) to want to have a say on who the judges are and how they think. In this sense, instability patterns suggest that politicians promote judicial change in order to wield power through the courts immediately, rather than in the future, as some of the previous models assume. Moreover, instability highlights the fluidity of judicial reforms and its consequences.
Argentina offers two examples of the different motivations that drive these moves, and their contrasting effects on judicial power. In the late 1980s, President Menem expanded the size of the Supreme Court in order to pack it with allies who would be responsive to the government’s needs in two key issue areas: prosecutions against former military officers, which the president wanted to stop, and market reforms, which the president wanted the courts to uphold (Verbitsky, 1993). In the early 2000s, President Kirchner also forced resignations and promoted impeachments in order to dismantle Menem’s court, but he also decreed new checks on the president’s nomination prerogatives, which ultimately led to the appointment of more autonomous justices. According to Ruibal (2009), Kirchner used his struggle against Menem’s court, which had become a symbol of corruption and subservience, as a tool to boost his popularity and legitimacy.
Accounts of judicial empowerment that highlight the role of judicial reforms focus on politicians’ preferences and incentives. The institutional choices made by presidents, legislatures, and constituent assemblies decisively constrain the ability of courts to exercise power. Judges are not protagonists in these stories of judicial empowerment. Moreover, as already noted, judicial reform models look almost exclusively at foundational moments, ignoring the ensuing institutional dynamics and the impact these have on judicial power.
A second group of scholars offers a very different perspective, paying special attention to how the political environment and the strategic interactions between the different branches of government affect judges’ institutional security and ability to make decisive interventions in sensitive debates over policy (Epstein & Knight, 1998). Importantly, the so-called strategic model theorizes empowerment from the vantage point of judges, and focuses on the politics of judicial decision-making, not reform. These authors do pay attention to politicians’ preferences and the dynamics of inter-party competition, but they emphasize how judges process the signals generated by the political environment. Specifically, scholars see judges as strategic actors who seek to advance personal, career, and policy goals while being mindful of the constraints and opportunities afforded by this external environment. As the least dangerous branch, with no influence over either the sword or the purse, judges must evaluate when and how to exercise power very carefully.
While the model does not deny that formal barriers to the encroachment of politicians in the work of judiciaries, such as tenure or salary stability, make bold, sincere behavior more likely (Ríos-Figueroa, 2016), it identifies informal mechanisms that often jeopardize the meaningfulness of these formal attributes of the bench. As a result, in order to characterize the process whereby courts become more influential political actors, scholars also take into account the resources available to elected officials to challenge court decisions, threaten judges, or deactivate islands of independence within the judicial branch (Ferejohn, 1998; Ferejohn & Weingast, 1992). Judges pay attention to these political constraints because they understand that failing to adjust their decisions to the preferences of other powerful actors in the system can result in negative consequences such as removal from office or non-implementation of rulings. The core assumption of the strategic model is therefore that judges will respond to the presence of political constraints by moderating risk-taking behavior. By contrast, when the power of their interlocutors in separation-of-powers games is effectively checked by formal rules, and their resolve to retaliate against courts is weakened by political fragmentation, the expectation is that judges will be freer to exercise their power.
The strategic model has been extremely appealing to scholars of Latin American judicial politics, in part because the history of instability documented by Pérez-Liñán and Castagnola (2009, 2016) shows that judges can never be too careful when deciding whether or not to put limits on politicians. And, at a structural level, the fact that judicial empowerment only became a region-wide phenomenon in the aftermath of the third wave of democratization, when pluralism and regime stability increased dramatically, supports the assumption that the fragmentation of power is an important pre-condition for judicial assertiveness.
Some scholars have used process tracing to show how changes in judicial power mirror changes in political fragmentation over time. For example, a study by Chavez (2004) of the Argentine judiciary during the second half of the 20th century finds that “monolithic party control permitted particular presidents, especially Juan Domingo Perón and Carlos Menem, to accumulate the power necessary to subordinate the courts” (p. 452). Similarly, a subnational controlled-comparison of judicial independence in San Luis and Mendoza, two neighboring Argentine provinces, shows that after democratization in the early 1980s, differences in levels of inter-party competition explain divergent judicial power trajectories, encouraging judges in more pluralistic environments to wield their power (Chavez, 2003). Looking at the Mexican case, Domingo (2000) also demonstrates how political liberalization in the 1990s carved out a space for greater judicial autonomy and security, and for judges to feel safe exercising their power.
Other scholars offer more direct probes of the strategic model by estimating the probability that judges defy the government as a function of political fragmentation. Using a large database of Argentine Supreme Court rulings between 1935 and 1998, Iaryczower, Spiller, and Tommasi (2002) show that judges were more likely to defy the executive branch when the president’s control over the legislature weakened, thus diminishing the credibility of impeachment threats against the court. As Chavez, Ferejohn, and Weingast (2011) conclude from their comparison of judicial power in the U.S. and Argentina, “when the executive and legislative branches are united against the courts, the courts have few resources with which to defend an independent course” (p. 219). Similarly, Ríos-Figueroa (2007) analyzed all Mexican Supreme Court decisions on constitutional cases between 1994 and 2002 and found that coordination difficulties between the legislative and executive branches ease constraints on judges and encourage more assertive behavior. In fact, the Supreme Court became more likely to rule against the PRI after the party lost its majority in the Chamber of Deputies in 1997. Finally, Rodríguez-Raga (2011) shows that strategic calculations also affect decisions by the Colombian Constitutional Court, which is otherwise famous for its bold behavior. While the political strength of the president does not affect levels of assertiveness, when the government signals that a particular case has high priority, justices are more likely to act in a deferential fashion.
The high levels of judicial instability observed across Latin America have pushed scholars to propose important twists to the strategic model, first developed to explain the behavior of the U.S. Supreme Court. In a groundbreaking contribution to the field, Helmke (2005) observed that almost every Argentine president since the 1940s changed the composition of the Supreme Court. In this context, deferential behavior became the rule, since judges knew all too well that they had no real tenure security. But extreme instability also produces incentives for what she calls strategic defection. In fact, the Supreme Court systematically increases the rate at which it defies government policies toward the end of presidential administrations, not only because retaliatory capacity diminishes when presidents are about to leave office but, most importantly, because judges want to signal that they are not perfect agents of the sitting incumbent, and that whoever is elected as a successor can trust them to be flexible in the future. In another study, Basabe (2011) also leveraged extreme judicial instability in Ecuador’s Constitutional Court between 1999 and 2007 to innovate theoretically. He showed that rather than inducing strategic behavior to avoid retaliations, extreme instability encourages judges to rule sincerely even if this leads to severe inter-branch conflict. Justices fully expect to be removed regardless of how they vote, so they prefer to rule as they see fit in order to consolidate reputations and prior careers in the academy or the private sector.
Finally, Ansolabehere (2007) and Kapiszewski (2012) bring to the table insights from historical institutionalism to show that historical patterns of executive–judicial relations (e.g., whether the norm is for politicians to promote judicial politicization or stability), shape the “character” of high courts, to use Kapiszewski’s terminology. This in turn has a path-dependent impact on the incentives and strategies that characterize inter-branch relations in the present. For Ansolabehere (2007, p. 89), the historic subordination of the judiciary to the executive branch in Mexico and Argentina produces high courts imbued with a “conservative” rationality. Similarly, Kapiszewski (2012) found that whereas in Argentina, “historic high court politicization had produced a Court that was, far more often than not, docile and subservient,” Brazilian politicians “were incentivized to professionalize the STF because doing so had historically produced a predictable court that was more likely to take mainstream legal positions and to lend legitimacy to laws that it upheld” (pp. 26–27).
The strategic school revolutionized the field of comparative judicial politics because it sensitized scholars to the importance of the institutional constraints in the judicial decision-making process, and to the fact that judges are deeply embedded in the political game. Among the shortcomings of the strategic model, two stand out. First, the emphasis on separation-of-powers games leads scholars to ascribe to an “external” view of judicial power. In other words, judicial power is mainly a function of the preferences, resources, and choices of non-judicial actors. But in reality, judges have a number of tools that often help them build legitimacy, consolidate their own power bases, and successfully navigate these constraints. More research is needed to identify what these tools are, how they are used, and whether or not they work. A few studies, however, offer interesting clues. For example, Staton (2010) shows that the Mexican Supreme Court developed clever public relations policies (e.g., carefully crafted press releases) to shore up public support in the wake of controversial rulings. Similarly, Goet and Gonzalez-Ocantos (2017) find that the Colombian Constitutional Court strategically cites international human rights law to increase the appeal of controversial decisions and forge defensive alliances with international and civil society actors.
Second, the strategic model underpredicts conflict because it expects judges to preempt backlash. This obviously does not square well with Latin America’s history of judicial–executive clashes (Helmke & Staton, 2011). One reason for this is that strategic scholars tend to focus on how resources, especially those of non-judicial actors, affect courts’ ability to act. They pay less attention to what determines judges’ willingness to act assertively in ways that expand the limits of political possibility, strengthening their own authority and influence, but also in ways that are dangerous and self-defeating. To understand why judges are willing to exercise power, sometimes despite the presence of clear political constraints, a third group of scholars proposes explanations that zoom in on the role of ideas. The next section turns to this body of work.
Legal Ideas, Professional Norms, and Institutional Missions
The notion of “power” usually refers to the ability to defend or challenge the status quo. In politics, power takes different forms—for example, the overt use of violence by the state, the capacity of legislative coalitions to pass bills, or the deterrent effect on potential challengers of an incumbent’s campaign war chest. But power is not only determined by forms of capital we can easily see or measure, such as guns, votes, or money. Importantly, actors’ cognitive schemata also condition their power. Power is shaped by the ability of political actors to imagine ways to maintain or acquire new prerogatives and resources, and by beliefs that affect their willingness to do so. For instance, bureaucrats often internalize behavioral routines that make them unaware, or ignorant, of potentially more efficient or empowering alternatives. Similarly, the leadership of a religious group may in principle have the ability to direct the votes of their followers and thus determine the outcome of an election, but a world view that rejects religious involvement in politics may in fact make these leaders powerless in the electoral field.
Several scholars of Latin American judicial politics borrow insights from sociological institutionalism to explore this alternative, a more elusive dimension of power. In particular, they emphasize the role of legal ideas, professional norms, and judicial role conceptions in determining judges’ willingness to exercise power and intervene in politics. According to these authors, judges are not merely politicians in robes who deploy instrumental rationality in separation-of-powers games. Instead, they see judges as bureaucratically embedded creatures subject to intense socialization processes in the academy and on the bench. These socialization processes nurture ways of thinking about the law, institutional cultures, and professional missions, which in turn guide behavior. The resulting profession-specific ideas or values can promote judicial passivity even when the broader political environment affords wide degrees of freedom, or assertiveness even when it is clearly dangerous to defy politicians.
According to Couso (2010), “any appeal to culture implies that shared meanings and understandings can move people to act in ways not determined by either their self-interest or structural features” (p. 143). In an important article, Hilbink (2012) challenges analyses of judicial power that focus on formal institutional reforms or political fragmentation, suggesting that to understand assertiveness, or what she calls “positive judicial independence,” we need to look at ideational or cultural factors. She argues that it is crucial to study how judges perceive “their function in a democratic system, that is, whether they believe their default approach should be to defer to or to question the decisions of state and government officials” (p. 589). Building on these insights, Gonzalez-Ocantos develops the concept of “legal preferences” to refer to the ideational foundations of judicial power. Legal preferences are deeply internalized dispositions for action that produce a cognitive lens through which judges process the disputes they are asked to resolve (Gonzalez-Ocantos, 2016, p. 33). Legal preferences encompass views about the reach and pliability of formal judicial prerogatives, and what constitutes legitimate sources of law (domestic, international, doctrinal), acceptable forms of legal argumentation, or reasonable standards of proof. Legal preferences thus engender a logic of behavioral appropriateness that leads judges to believe that certain legal solutions ought to be favored and defended, regardless of the permissiveness of the surrounding political environment. In addition, because they promote adherence to routine decision-making templates, legal preferences structure the judicial imagination and constrain the types of decisions judges are likely to reach.
The ideational school points to the hegemony of formalistic legal preferences to explain the historic passivity and subservience of Latin American judicial branches during most of the post-independence period. Until very recently, judicial branches in the region were home to an extremely formalistic version of legal positivism, which affirmed the supremacy of domestic written law and engendered hostility toward more activist, non-textualist readings of the law (Couso, 2010; Gonzalez-Ocantos, 2016; Hilbink, 2007). After reviewing the legal scholarship produced in the region during the 20th century, Couso (2010) concludes that “the dominance of legal positivism and a deferential understanding of the role of the courts vis-à-vis the political system was absolute” (p. 152). In this context, the notion that the law was clear, and that its application required no interpretation, was widespread (Cuneo, 1980; Pérez-Perdomo, 2006). Furthermore, judges firmly believed in legislative supremacy. As a result, when exercising their constitutional review powers, they tended to focus on the procedural dimension of constitutions, merely checking whether statutes or decrees had been passed in accordance with established mechanisms. There was little room for examining the implications that a given piece of legislation had for citizens’ fundamental rights.
This formalistic “habitus” stifled judicial assertiveness. A Peruvian high court judged quoted in Pásara (2010) aptly crystalizes this world view: “A judge cannot erect himself into a legislator by interpreting the law due to the obsolescence of legal instruments [. . .] because so doing would mean erecting the will of the judge into a source of law, something which is doctrinally inadmissible and very dangerous” (p. 37). Similarly, a Colombian scholar recalls the impact of this legal culture on his socialization as a lawyer: “The dominant way of teaching law [. . .] promoted at a basic level learning by heart the rules contained in laws and codes as a necessary step to remember and remain loyal to them [. . .] ‘Legality,’ as a tool of social control began there, in our memory” (López-Medina, 2004, p. 2 (translation by the author)).
This bundle of legal preferences had important distributional effects, mainly because it did not allow for the development of rights-oriented jurisprudence, and biased judiciaries in favor of conservative interests (Hilbink, 2007, 2012). Referring to the Brazilian case, Taylor (2008) notes that judges focused on the “law as is written [. . .] Despite an extensive catalogue of individual rights in the 1988 constitution, protection of individual rights is almost always the exception” (pp. 35–36). And in Mexico, deeply engrained formalistic routines meant that despite the empowering reforms of the 1990s, the Supreme Court more often than not failed to become a guarantor and architect of fundamental rights (Ansolabehere, 2010; Sánchez, Magaloni, & Magar, 2011). In some contexts, this had tragic consequences as it led to judicial passivity in the face of egregious human rights violations. For example, in an influential study of the Chilean judiciary, Hilbink (2007) asks why judges trained and appointed under democracy failed to stand up to Pinochet. She finds that a legal ideology of “apoliticism,” reproduced by a highly endogamous, hierarchical, and rigid judicial bureaucracy left judges “unequipped and disinclined to take stands in defence of liberal democratic principles, before, during, and after the authoritarian interlude” (p. 5). Similarly, the Final Report of the Peruvian Truth and Reconciliation Commission argues that during the country’s internal armed conflict (1980–2000), formalism led judicial actors to completely neglect their role as protectors of fundamental rights, indirectly becoming “agents of violence”: “The judiciary lacked a real capacity to act, or what is even worse, did not have the will to act in defense of the constitutional order” (Comisión de la Verdad y Reconciliación, 2003, pp. 249–250 [translation by the author]).
Beginning in the late 1980s, the hegemony of formalism began to break down with the inflow of a competing bundle of legal preferences, often referred to as “neoconstitutionalism.” According to a helpful definition by Huneeus (2016), neoconstitutionalism promotes “a liberal vision of constitutional law that emphasizes judicial power, rights-based review, and Dworkinian-style interpretive practices,” leading judges to “embrace the view that constitutional rights are grounded not only in positive law but also in international human rights instruments” (p. 180). As a result, neoconstitutionalist judges abandon plain-meaning interpretation and adopt more complex hermeneutic techniques such as balancing or proportionality tests, which favor the active construction of the meaning of fundamental rights in light of a variety of domestic and international, written, customary and doctrinal, sources of law (Cepeda, 2006).
This ideational transformation provided technical and normative scripts conducive to greater judicial assertiveness in progressive directions. But where did neoconstitutionalist ideas come from, and how did they make their way into Latin American judicial branches?
Couso (2010) focuses on the importance of changes in Latin America’s legal scholarship, because it “represents one of the most important sites for the configuration of an understanding of the nature, sources, and role of the law, as well as conceptions about the judiciary and legal interpretation” (p. 141). Other authors show how this new rights-centered legal discourse penetrated judiciaries in the aftermath of important organizational changes that opened the door to new voices. The creation of Colombia’s Constitutional Court, for example, led to the appointment of highly reputed legal scholars who were uncontaminated by the vices of formalism and championed neoconstitutionalist views (Nunes, 2010). Interestingly, these judges pushed the court’s agenda away from the neoliberal ideals that inspired the creation of a strong constitutional authority, especially by recognizing a variety of socio-economic rights (Botero, 2017). In countries such as Chile, judicial reforms led to the greater professionalization of the bench via the creation of judicial schools with competitive entry exams, and to the opening of numerous new positions in the judiciary. As a result of the increasing presence of neoconstitutionalism in the Chilean legal academy, the newly appointed judges harbored different ideas and role conceptions than their older peers (Couso & Hilbink, 2011).
While these authors point to the synergies between the development of pockets of neoconstitutionalism in the legal field more broadly and processes of judicial reform promoted by political elites, others focus more directly on judicial agency. In a fantastic comparison of subnational judicial change in Brazil and Mexico, Ingram (2015, p. 4) suggests that the “programmatic commitments” inherent to new “legal-cultural profiles” led some state-level judges in both countries to champion judicial reforms that enabled greater assertiveness in line with the spirit of neoconstitutionalism. Similarly, Hilbink (2012) shows that the emergence of networks and professional associations of judges with more progressive views was instrumental in legitimizing and diffusing new legal practices and institutional missions in Chile and Spain. In a highly innovative piece of scholarship, Cortez (2017) argues that incoming neoconstitutionalist judges can change the profile of otherwise formalistic and conservative courts by adopting new organizational practices. Specifically, he shows how one Mexican Supreme Court judge restructured his clerkship and opinion-writing procedures to facilitate the production of disruptive jurisprudence. These organizational practices gradually diffused to other offices, consolidating the penetration of neoconstitutionalism. Finally, Quesada-Alpízar (2017) traces how neoconstitutionalist judges in Costa Rica and Chile chose a gradual, piecemeal approach to develop new standards of rights adjudication. This strategy allowed them to secure the support of more traditionalist colleagues, and thus promote the progressive empowerment of their respective courts.
Litigants are another crucial source of legal–cultural change. In the words of a former Mexican Supreme Court judge, they “are the unknown soldiers of jurisprudence” (interview with the author, Mexico City, July 27, 2010). In the aftermath of the third wave of democratization, Latin American citizens discovered the “potentially subversive and mobilizing character of legal rhetoric” (Smulovitz, 1995, p. 88). Often aided by reforms that made it easier to access the judiciary (Rodríguez-Garavito, 2009; Wilson & Rodríguez-Cordero, 2006), individuals and NGOs (nongovernmental organizations) flooded dockets with claims that transformed judges’ agendas, problematizing new issues and demanding constitutional solutions. Exposure to sustained pressure from below can radically shape the way judges perceive their role, leading them to adopt a problem-solving approach that transcends formalism. For example, in the aftermath of the 2001 economic crisis, Argentines dramatically escalated the use of the writ of amparo to seek redress (Smulovitz, 2010). As an Argentine judge stated in an interview,
if a guy steals a sandwich in a post-1990s context of exclusion, I can’t blindly apply the criminal code [. . .] I am obviously aware of the changes that society underwent during those years. This clearly opens your eyes to alternative legal discourses [. . .] The new constitutionalism developed strongly during the 2001 crisis. There were a lot of young lawyers that started to invoke the Constitution to establish exceptions to the corralito, to request medicines for patients in critical conditions, etc. They began to see the rights in the Constitution. (interview with the author, Buenos Aires, February 7, 2011)
But litigants do more than just exert pressure and sensitize judges. For example, Gonzalez-Ocantos (2016) shows that the success of transitional justice in countries like Argentina or Peru is in part explained by the presence of litigants who deployed ambitious pedagogical interventions and personnel replacement tactics to diffuse alternative legal ideas and practices grounded in international human right law, thus ensuring that judges had the knowledge and the will to deliver truth and justice for the victims of state repression.
As Huneeus (2016) points out, Latin America’s brand of neoconstitutionalism anchors judicial review in values that emanate from international human rights law. Neoconstitutionalist judges tend to see themselves as part of a global judicial community that deals with similar questions about fundamental rights. This in turn implies an evolution away from legal particularism, and leads to a growing commitment to legal visions grounded in universalistic notions of human rights (Slaughter, 2000). It is therefore not surprising that transnational processes and actors also played an important role in the diffusion of neoconstitutionalist preferences and practices. Specifically, since the late 1990s Latin American high court judges have been involved in a rich dialogue with the Inter-American Court of Human Rights, thus reinforcing regional jurisprudential trends (Engstrom, 2018; Huneeus, 2011). Research shows that the Inter-American Court of Human Rights’ “conventionality review doctrine,” which encourages judges to review legislation not only in light of constitutions but also in light of the American Convention on Human Rights, has spurred interesting debates about how judges ought to decide, and in some cases, homogenized standards of rights protection (Dulitzky, 2015). For example, Gonzalez-Ocantos (2018) shows that the Inter-American Court actively created spaces to debate judges’ international legal obligations with its local counterparts, successfully increasing the use of international human rights law and jurisprudence in domestic judgments.
The ideational school advanced the field of Latin American judicial politics by exploring the legal–cultural factors that explain judges’ increasing willingness to exercise power, often in defiance of clear political constraints. Moreover, it broadened the cast of theoretically relevant actors in models of judicial change, putting emphasis on the role of judges, litigants, and international courts. In so doing, this scholarly tradition captures the specificities of the legal field, its rituals, language, and ways of reasoning, without losing sight of the political nature of law and judicial behavior. Like the other models, however, it also suffers from important shortcomings.
First, it is notoriously hard to establish empirically the independent effect of legal ideas on judicial decision-making. For example, it is often unclear whether neoconstitutionalist ideas actually alter preferences for certain jurisprudential outcomes or simply enable assertiveness by allowing judges to act on prior ideological commitments, offering a legal justification for new jurisprudential stances.
Second, legal preferences tend to be portrayed as deeply ingrained cognitive schemata. Yet, they change, and sometimes do so very quickly. How can we square this contradiction? Scholars usually reference exogenous shocks to explain change, but we need more careful theorizing to identify the conditions under which seemingly resilient decision-making routines and templates are likely to suffer disruptions.
Third, the ideational model would benefit from integrating insights from the other approaches. While ideas help explain assertions of judicial power that are puzzling from the perspective of the strategic model, it is still the case that the political environment often constrains judicial action, limiting judges’ ability to express their views. In addition, dominant professional role conceptions or judicial philosophies are themselves political constructions that result from battles pitting myriad partisan and societal forces. In this sense, it is helpful to think of deeply ingrained legal preferences as reflecting the interests of victorious socio-political coalitions formed to champion new values or policies through the courts. As a result, ideational stasis or change largely responds to shifts in the balance of power among non-judicial actors. The strategic model’s focus on the constraining role of the external political environment should therefore be imported to better understand the pace, extent, and direction of ideational change.
Hollow Hopes or Effective Champions of Fundamental Rights?
Latin American courts have clearly acquired a more important role, altering the politics of the region. But does assertiveness translate into real impact? A famous study of the U.S. Supreme Court claims that judges present “hollow hopes” (Rosenberg, 2008). Real progress in rights effectiveness is more often than not attained through executive or legislative action (Hirschl & Rosevear, 2011), because as policymakers, courts tend to be erratic, too piecemeal in their approach, or simply ineffective.
Some scholars of judicial impact in Latin America share this pessimistic outlook. In his study of right-to-health litigation in Brazil, Ferraz (2009) offers a strong critique of judicialization, arguing that courts enhance rather than reduce health inequalities. The high success rate of individualized claims for access to medications in a context of severe budgetary constraints leads to a policymaking approach that undermines the state’s capacity to invest in universal provision because authorities must comply with specific and expensive court orders. Compounding things further, successful litigants tend to come from relatively more advantaged socio-economic backgrounds. In an analysis of three landmark judicial decisions on socio-economic rights, two by the Argentine Supreme Court and one by Colombia’s Constitutional Court, Puga (2012) also exudes skepticism about the transformative potential of litigation. She contends that legal experts dominate judicialization processes, leading to the exclusion of the groups actually affected by the policies in question. This usually undermines the effectiveness of judicial remedies. Gargarella (2015) also analyzes a famous ruling by the Argentine Supreme Court ordering the clean-up of the country’s largest river basin, and concludes that policy changes in response to the decision did not improve the lives of those affected by extreme levels of pollution. Finally, Gianella-Malca, Gloppen, and Fosse (2013) offer a detailed analysis of the consequences of a Colombian Constitutional Court decision that mandated a massive overhaul of the nation’s health care system. While they credit the court for the introduction of a new framework to debate health rights, they are not impressed by the results: “nominal compliance with the Court's orders is not enough. The data analyzed in this article shows that the state has not fulfilled its constitutional responsibility to organize, direct and regulate the provision of health services in ways that allow the effective enjoyment of the right to health” (p. 171).
Not everyone shares this pessimism. In two important studies analyzing the impact of decisions by the Colombian Constitution Court that promote structural remedies to address rampant inequalities, Rodríguez-Garavito (2011) and Rodríguez-Garavito and Rodríguez-Franco (2015) document a series of positive effects that go beyond mere government compliance. These rulings led to the “reframing of socioeconomic issues as human rights problems, the strengthening of state institutional capacities to deal with such problems, the forming of advocacy coalitions to participate in the implementation process, and the promoting of public deliberation and a collective search for solutions on the complex distributional issues” (Rodríguez-Garavito, 2011, p. 37). This research thus acknowledges the complexity of the problems addressed by judicialization, recognizes a series of indirect effects beyond compliance, and puts into perspective what can be realistically expected from court activism.
Scholars of impact have also proposed theoretical models that explain variation in the ability of courts to affect public policies and rights effectiveness. Shifting from a descriptive to an explanatory mode, Rodríguez-Garavito (2011) identifies two crucial factors. First, courts that set broad goals and clear implementation schedules but afford bureaucrats handsome margins of appreciation are more likely to succeed. Second, courts that set up public monitoring mechanisms such as hearings or follow-up commissions are also more likely to alter public policies in the long run by fostering more deliberative and inclusive approaches to policymaking. In a rare study that traces judicial impact in eight landmark rulings in Argentina and Colombia, Botero (2015, 2018) suggests that levels of impact vary as a function of the density of advocacy networks formed around the issue and the presence of court-mandated monitoring. Importantly, she offers a careful theorization of the mechanisms of impact unleashed by the combination of these two factors, which together lead to the emergence of “collective oversight arenas.” Finally, Ríos-Figueroa (2016) studies how Latin American courts shape civil–military relations in Mexico, Peru, and Colombia. He shows that courts that are more independent and accessible, enjoy strong review powers, and are better positioned to play the role of “mediators,” fostering dialogue between the parties and reducing the informational problems that produce conflict in the first place.
The study of judicial impact in Latin America is still in its infancy. So far, scholars have focused on a few courts, and a few landmark decisions by those courts. This is understandable as documenting impact is notoriously hard, requiring in-depth process tracing and access to myriad data sources. But despite its narrow empirical focus, the literature on impact has made important progress, especially at a conceptual level. Both pessimists and optimists ascribe to a view of impact that is not reducible to mere compliance by government authorities. In the words of Kapiszewski and Taylor (2013), impact “concerns the effect of court rulings beyond the actions or policy changes that directly result from them” (p. 5). Work by Botero, Ferraz, and Rodríguez-Garavito, for example, suggests that courts can influence public discourse, legal mobilization, the way bureaucrats conceptualize problems and their solutions, and public policies beyond those addressed by the rulings in question. While some may argue that this inclusive conceptualization makes it hard to find instances of no impact, a pluralistic approach is actually better equipped to measure impact as a continuous variable and pay attention to the temporal dimension of impact. As Botero (2015) notes, “impact is a process, not a snapshot, one that unfolds over time and cannot be easily reduced to a single static indicator” (p. 14).
Over the last 25 years, the field of Latin American judicial politics has grown exponentially. This article covered work by a variety of junior and senior researchers based in Latin America, the United States, and Europe, whom collectively have produced an influential collection of theoretical innovations and empirical discoveries. While scholars belong to distinct theoretical families, the progress of the field has not been stifled by sterile theoretical disagreements about the nature of judicial power, behavior, or impact. In fact, most research is puzzle-driven, and often quite eclectic, seeking to understand the transformation of the role of Latin American courts since the late 1970s. Methodological pluralism is another important asset of the field, because it allows scholars to study different determinants of behavior and impact, some which can be readily quantified and analyzed using regression-based methods, and others which require more historical, qualitative approaches. Having said this, there are still important gaps in our understanding of the region’s judicial politics. By way of conclusion, in what follows the article points out three areas in which more research is needed.
First, most research still focuses heavily on high courts, especially supreme and constitutional courts. Unfortunately, very few scholars have looked at the behavior and impact of lower federal and provincial courts (e.g., Brinks, 2008; Gallagher, 2017; Gonzalez-Ocantos, 2016; Ingram, 2015). While supreme and constitutional courts deal with issues of the utmost political importance, and make highly visible interventions, lower courts are citizens’ first point of contact with the judicial system. These are the judges who solve the vast majority of cases, and often the ones who matter the most to people. In addition, studying lower courts can greatly enrich theoretical models of judicial behavior. For example, are the bureaucratic norms and professional role conceptions emphasized by the ideational school more deeply engrained and therefore more resistant to change, among lower court judges than they are among constitutional justices? Does the position of the latter at the top of the judicial hierarchy make them more attuned to political dynamics, and therefore more prone to deciding on the basis of strategic considerations? These questions point to unresolved issues regarding the scope conditions and explanatory potential of the different theoretical models.
Second, we know perilously little about the relationship between Latin American courts and public opinion. This contrasts with the vast literature on this topic produced by scholars of U.S. courts. Some authors recognize that public support can be an important source of leverage for Latin American courts during separation-of-powers games (Helmke & Staton, 2011; Staton, 2010), but next to nothing has been written about how Latin Americans perceive their courts, whether they think of them as different from other institutional actors, or how judicial behavior affects public support for courts (for an exception, see Driscoll & Nelson, 2018).
Third, at the time of this writing, judges in a variety of Latin American countries are becoming crucial actors in the fight against corruption. Few judicial interventions are more fundamentally political than anti-corruption judicial activism, raising important questions about the determinants of extremely bold and effective behavioral patterns, but also about the system-wide impact of these cases (Gonzalez-Ocantos & Pavao, 2018). Indeed, anti-corruption judicial activism can prove highly disruptive of democratic politics, sullying the reputation of parties, removing politicians from office, or disqualifying candidates from electoral competition. It can also further fuel the politicization of the judiciary, since court behavior can easily be seen as vindictive and politically motivated, or as an egregious anti-majoritarian distortion of democratic processes. In many ways, due to their eminently political nature, waves of anti-corruption investigations put into sharp focus the empirical and normative questions about the role of the judiciary in democracy that cut across the literature on comparative judicial politics.
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