- Courts Under Constraints: Judges, Generals and Presidents in Argentina
Latin America's most recent judicial reform movement is nearing its twentieth anniversary. A product of the democratic transition of the 1980s, it brought dramatic changes in the organization, operations, and influence of the region's justice sectors and, most notably, its judiciaries. The promised benefits for political stability, economic growth, and juridical security are less certain. Improvements in judicial performance have fallen short of predictions, and new problems have emerged. Among them are heightened interinstitutional conflicts, as newly empowered courts flex their muscle against the other branches of government. The reformers' failure to foresee this development (likewise, governments' and foreign donors' failure to anticipate the impact on their other programs) is surprising. In retrospect, their vision seems overly simplistic: politically controlled, dependent courts support the government; with greater independence, courts uphold the rule of law. Both the status quo ante and what followed turned out to be far more complicated.
Gretchen Helmke's book is an important contribution to an emerging body of literature examining the current and historical check-and-balance role of Latin American judiciaries and its political and institutional underpinnings. The book is also part of a new effort to use quantitative methodologies to test the conventional wisdom about judicial behavior. Both undertakings are long overdue. Helmke hardly provides the final word, but she is a pathbreaker in a new field of inquiry. The questions she asks may not be the most central ones, but given the vast amount of unexplored territory, it is hard to say where to start. What she has established beyond a doubt is the inadequacy of the reformers' simple paradigm and of understandings based on U.S. experience.
This is a short volume, and Helmke devotes most of it to elaborating and testing her thesis. The first three chapters set the stage by examining the traditional arguments about when courts "rule against the rulers," introducing a theory of strategic defection as an alternative for less stable political settings, and elaborating a model of strategic choices [End Page 194] to derive testable hypotheses. After a brief review of judicial instability and conflict with the Argentine executive from 1955 to 2003, her fifth chapter uses her database to test the hypotheses, focusing on changes in the frequency of antigovernment decisions during the final years of the military, Alfonsín, and two Menem administrations. Helmke concludes that "the evidence offers overwhelming support for the view that judges under threat behave strategically" (p. 124). They attempt to keep their jobs by adopting the preferences of a likely new government, and thereby defect from a weakened incumbent regime. A sixth chapter discusses a few principal cases, and the book concludes with a comparative review of the Venezuelan, Mexican, and Chilean examples. There are short appendixes on Argentine court organization, Helmke's equilibria proofs, and her database of 11,423 decisions made by Supreme Court justices between 1976 and 2001. Because these are individual decisions, the number of cases (an apparently missing detail) must be between 1,000 and 2,000, given that court size varied between 5 and 9 justices.
Although Helmke cites an extensive literature and 30 informant interviews, the crux of her work is the impressive database culled from the Supreme Court's own files. Her criteria for selecting relevant cases—those affecting government interests—and for defining an antigovernment position (which, experience suggests, is not necessarily a "no" to something the incumbents once supported) might be questioned; she did check local sources to confirm capture of cases viewed as significant. Helmke's analysis convincingly demonstrates the positive relationship between antigovernment votes (as she defines them) and the weakness of an outgoing administration; establishes its consistency with her strategic defection model; and deals, if less satisfactorily, with three alternative explanations: changes in the court's composition, more illegal actions by a weakened government, or different mixes of cases toward the end of each administration. What remains in question, both for Argentina and elsewhere, is whether...