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Courts Under Constraints: Judges, Generals and Presidents in Argentina (review)

From: Latin American Politics & Society
Volume 49, Number 4, Winter 2007
pp. 202-205 | 10.1353/lap.2007.0045

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Why would otherwise dependent judges rule against the government? This is the central question that Gretchen Helmke addresses in Courts Under Constraints. Helmke presents a tightly argued, theoretically and empirically interesting explanation of why Argentine judges who operate in political conditions normally associated with judicial compliance rule, nevertheless, against the government's interests.

Argentina has been characterized by executive control of judicial appointments and the replacement of Supreme Court judges with each turnover of power since the 1940s. In this political environment, judges might be expected to be deferential toward the government; yet Helmke finds a pattern of antigovernment rulings clustered at the end of government terms. The explanation advanced is original and provocative: in the unique context of institutional insecurity, ruling against the current government helps judges avoid punishment by a future opposition government.

Courts Under Constraints is organized around an effort to make theoretical sense of the empirical puzzle of antigovernment Supreme Court decisions and to test the resulting explanation. Helmke draws on, and significantly extends, separation of powers accounts of judicial politics developed in the U.S. politics literature to provide a new analytical framework for understanding the Argentine case. Chapters 2 and 3 develop an increasingly abstract formal signaling model based on incomplete information. Helmke derives several testable implications for judicial behavior from the model and carefully develops a straightforward and coherent rational choice explanation for defection. Chapters 4 through 6 are devoted to applying and evaluating this explanation in Argentina from the last military regime (1976–83) through the democratically elected Alfonsín and Menem presidencies and ending in 2000.

Several core strengths set this book apart in the growing field of comparative judicial politics. First, Helmke has set a high methodological standard for comparative analysis of judicial politics in new and emerging democracies with an ambitious and systematic longitudinal study of supreme court decisionmaking in a single-country study. Her quantitative methodology is clear and logical, historically informed, and qualitatively deepened by interviews and case analysis. Second, a chief asset of the work is the explanation itself, "a theory of strategic defection," and the manner in which this microlevel account of Argentine judicial politics extends separation of powers accounts of judicial politics more generally. Third, the model Helmke develops has testable implications that are supported by the evidence from the Argentine case but theoretically constitute a general explanation applicable beyond the single case.

The book advances a novel approach to judicial decisionmaking: a theory of "strategic defection." The theory was developed to account for the observed pattern of Argentine Supreme Court decisions countering outgoing governments. Helmke persuasively argues that our analytical tools for understanding judicial behavior, the attitudinal model and the separation of powers account, cannot adequately explain judicial defection from the very government that appointed the sitting justices. In developing her theoretical approach to defection, Helmke both borrows and departs from separation of powers explanations of judicial behavior. Separation of powers accounts posit that the choices judges make are shaped by the political constraints they face; and they generally explain why judges rule in the government's favor even though they would prefer not to (24). When justices veer too far from the preferences of the current government in a separation of powers political system, they risk negative consequences (sanctions, such as a legislative override). The possibility of sanctions, in turn, provides judges with incentives to pursue politically viable options rather than their most preferred policy.

Helmke uses the separation of powers logic underlying strategic judicial behavior but alters a key premise about the source of constraints. In her strategic defection theory, "the primary threat to judges comes not from incumbent governments but from incoming governments" (28). That single premise change allows Helmke to develop a sophisticated account of "judicial defection as a distinct form of judicial behavior" and as a rational response by justices who were appointed by and presumably loyal to the current administration. The core insight is that "whenever judges lack institutional security they will face powerful incentives to rule against the current government, once that government begins to lose power" (41). Judges' choices under one government affect their fate under the next, and they will strategically rule against the...



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