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Courts in Latin American Politics

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Abstract

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.
Courts in Latin America
Ezequiel Gonzalez-Ocantos, University of Oxford
Gonzalez-Ocantos, Ezequiel. Forthcoming. “Courts in Latin America.” In G. Prevost
and H. Vandem eds. The Oxford Encyclopedia of Latin American Politics. New York:
Oxford University Press
Summary
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.
Keywords: Latin America, Judicial Politics, Judicial Reform, Strategic Model, Legal
Preferences, Neoconstitutionalism, Judicial Impact, Latin American Politics
Introduction
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 of 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, created new entitlements (Helmke and 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 (Rodriguez-Garavito 2011; Kapiszewski 2012;
Brinks and Forbath 2014; Botero 2017); 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 (Wilson and Rodríguez-Cordero 2006; Botero 2015); and protected the rights of
sexual minorities and internally displaced populations (Díez 2015; Rodríguez-Garavito and
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
shockwaves 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: 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.
In this article I will discuss 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 understand why Latin American courts
have become more involved in political questions. The article will pay 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, I will consider 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-WWII 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
(Hammergren 1998, 2007; Carothers 1999; Sarles 2001; Finkel 2008). 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: 29) finds that “Latin American judges now enjoy considerably
greater insulation from political pressure than they have in the past.” 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” (ibid: 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 Ginsburg’s (2003) influential insurance model, 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 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” (ibid: 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” (for example, 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” (ibid: 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” (ibid: 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 and 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 WWII, 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 that 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.
Separation of Powers Games
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 and 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 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 (Epstein and Knight 1996).
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 and
Weingast 1992; Ferejohn 1998). 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, Chavez’s (2004: 452)
study of the Argentine judiciary during the second half of the twentieth 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.” 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 1935-1998, Iaryczower at al.
(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 et al. (2011: 219) conclude from their comparison of
judicial power in the US 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.” Similarly, Ríos-Figueroa (2007) analyzes all Mexican Supreme Court decisions on
constitutional cases between 1994-2002, and finds 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 is
of 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 US Supreme Court. In a groundbreaking contribution to the field, Helmke
(2005) observes 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 towards 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 leverages extreme
judicial instability in Ecuador’s Constitutional Court between 1999-2007 to innovate
theoretically. He shows 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 (for
example, 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, the historic subordination of the judiciary to the executive
branch in Mexico and Argentina produces high courts imbued with a “conservative”
rationality (2007: 89). Similarly, Kapiszewski finds 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” (2012: 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 count with 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 under predicts conflict because it expects judges to
preempt backlash. This obviously does not square well with Latin America’s history of
judicial-executive clashes (Helmke and 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. In the next
section I turn 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
worldview 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, 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: 143), “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.” 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” (589). Building on these insights, in my own work I develop 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:
33). Legal preferences encompass views about the reach and pliability of formal judicial
prerogatives, and what constitute 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 towards more activist, non-
textualist readings of the law (Hilbink 2007; Couso 2010; Gonzalez-Ocantos 2016). After
reviewing the legal scholarship produced in the region during the twentieth century, Couso
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” (2010: 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: 37) aptly crystalizes this worldview: “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.” 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: 2, my translation).
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
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” (2008: 35-37). And in Mexico, deeply engrained formalistic routines meant that
despite the empowering reforms of the 1990s, the Supreme Court more often that not failed
to become a guarantor and architect of fundamental rights (Ansolabehere 2010; Sánchez et al.
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” (ibid: 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: Volume III, Chapter VI,
pp. 249-250, my translation).
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 Huneeus’s (2016: 180) helpful definition,
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.” 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: 141) 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.” 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
and 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: 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 re-structured 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 choose 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” (Author’s
Interview, Mexico City, 27 July 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: 88). Often aided by reforms that made it easier to access the
judiciary (Wilson and Rodríguez-Cordero 2006; Rodríguez-Garavito 2009), individuals and
NGOs 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 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” (Author’s Interview, Buenos Aires, 7 February
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 (Huneeus 2011;
Engstrom 2018). 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
constraints 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 US 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
and Rosevear 2011), because as policy-makers, 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 policy-making 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 et al. (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 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 analysed 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” (ibid: 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: 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 policy-making. 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, accessible, and enjoy strong review powers, 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: 5), impact “concerns the effect of
court rulings beyond the actions or policy changes that directly result from them.” Work by
Botero, Ferraz, and Rodríguez-Garavito, for example, suggest 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: 14) notes, “impact
is a process, not a snapshot, one that unfolds over time and cannot be easily reduced to a
single static indicator.”
Conclusion
Over the last 25 years, the field of Latin American judicial politics has grown exponentially.
This review 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 I will point 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; Ingram 2015; Gonzalez-
Ocantos 2016; Gallagher 2017). 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 that solve the
vast majority of cases, and often the ones that 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 US courts. Some authors recognize that public support can be an important source
of leverage for Latin American courts during separation of powers games (Staton 2010;
Helmke and Staton 2011), 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 and
Nelson 2018).
Third, at the time of 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 and 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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Verbitsky, Horacio. 1993. Hacer la corte: La construcción de un poder absoluto sin justicia
ni control. Buenos Aires, Argentina: Planeta.
... While the use of social policy as part of individualized, contingent exchanges with citizens certainly occurs in Argentina, it is not ubiquitous (e.g.,González-Ocantos and Oliveros 2019;Szwarcberg 2015;Weitz-Shapiro 2012).27 In our sample, 15% of respondents receive Argentina's cash transfer for families with young children (AUH); these respondents are poor and the most likely to be regular recipients of welfare aid in the form of food. ...
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