Court under Constraints: Judges, Generals, and Presidents in Argentina
Argentina's long history of political instability has made it an unlikely candidate for judicial independence. With dramatic and frequent swings between civilian and military regimes throughout the twentieth century, judges have often been caught in the crossfire: new regime, new court. Impediments to independence, including impeachments, threatened impeachments, and other methods, continued even after the 1983 transition to democracy (62). Given these conditions, the assumption might be that the Supreme Court would unavoidably serve as an executive pawn. In Courts under Constraints, Helmke questions this supposition. Drawing on substantial research and a wide variety of methodological approaches, Helmke seeks to show that even in Argentina's highly constrained court, judges do decide against the executive.
Helmke demonstrates persuasively that the very vulnerability of judges in an unstable situation can, in fact, encourage them to dissent from the incumbent government, especially as a change in administration looms near. Judges are most likely to engage in this "strategic defection" when they believe that the government's popularity is declining and expect the subsequent government to have a different set of preferences. Although strategic defection may risk the wrath of the incumbent, it may enhance the possibility of surviving the administrative change.
Beyond her findings, what makes Helmke's work unique is her willingness to embrace an unusual breadth of methodological approaches, including everything from formal modeling and statistical analysis to qualitative analysis. The formal modeling may not have contributed enough insight to have warranted the considerable effort that went into developing it, but it is nonetheless an interesting exploration. If Helmke's methodology had a flaw, it might be an over-emphasis on "scientific" testing, rather than learning from results. Although she makes a good case for her argument, and tests it from a variety of angles, her rigor also confines her. The vast amount of information that she has collected would allow her to indulge in considerably more substantial theory building, developing the many nuances and exceptions that she discovers and integrating them into the general theory. For example, Figure 5.1 demonstrates apparent "strategic defection" in, for example, 1982/83, 1987/88, and 1998/99 (101), but the model does not really explain the jumps in "anti-government judicial decisions" that occurred, for example, in 1986 and 1993.
The consistent emphasis on testing the strategic-defection model also leads the author occasionally to miss alternative explanations for particular outcomes. A case in point is the Court's 1987 reversal of its position toward a "Due Obedience" law, which essentially granted amnesty to junior and mid-level officers for most human-rights violations committed during the 1976–1983 military regime. According to Helmke, [End Page 166] the Court's shift from opposing the legislation to accepting it stemmed from the new convergence between the Radical Civil Union (UCR) administration and the Peronist legislature, once the legislature passed the law (142). Following the author's line of argumentation, which has both major parties signaling the same preferences, justices would be unlikely to please any future administration by dissenting. However, it seems equally, if not more likely, that both the Court and the Legislature were responding to the same conditions, the threat from the April 1987 military rebellion. Thus, despite her methodological breadth, in this instance, Helmke's focus on hypothesis testing may have misled her.
The effort to develop an elegant, nomothetic model also has led to some significant exclusions—for instance, regarding the extent of convergence between the legislature and the executive. As Helmke notes, since Latin American legislatures are notoriously weak in relation to the executive, they have been unable to play a significant role in selecting, or inhibiting selections of Supreme Court judges (10). Nonetheless, the legislature is the branch with the power to impeach judges. The cases that Helmke develops reveal some interesting differences regarding how different legislatures exercised that power. During Eduardo Duhalde's presidency, Congress appeared to have raised and dropped impeachment proceedings at Duhalde's behest (148–151). Yet the case of Fernando De la Rua, a Radical attempting to govern with a Peronist Congress, provides the striking contrast of a divided government apparently impeding the president's ability to pursue impeachment as an option, despite his initial intents to do so (145). Helmke, however, mentions the implications of divided government only in passing.
Despite these limitations, this book remains a valuable contribution to the literature on two fronts. First, Helmke has conducted admirable research, both quantitative and qualitative, on the Argentine judicial system, providing a wealth of information. Second, the book's unusual methodological breadth makes it an intriguing exploration of various tools' ability to answer different social-science questions. The challenge, as always, is to integrate these methodologies effectively to maximize the gains.