Judicial Power in Latin America

Political scientists working in the field of public law tend to organize phenomena into four main analytic categories: (1) institution building or empowerment; (2) activation of these institutions, once empowered; (3) decision making within these institutions; and (4) the broader social impact or effect of these decisions. The related analytic concepts and arguments extend to other legal institutions, but courts dominate as objects of inquiry, resulting in a literature that emphasizes court empowerment, court activation, judicial decision making, and judicial impact. Many disciplines conduct research in these areas and approach them differently; sociologists, for instance, might reclassify court activation research as accounts of legal mobilization. The interdisciplinary work that falls under the umbrella of “law and society” frequently examines how law operates in practice or in action, analyzing how informal, social, political, or economic factors shape legal institutions, behavior, and social change.

Court empowerment covers the process of expanding the judiciary’s ability to hear cases and shape policy. Empowerment can include expanding the range of types of cases a court can hear (jurisdiction); the range of actors that can reach the court as litigants (standing), among other attributes of justiciability (that is, whether a case or issue is able to reach and be decided by the courts); and also the effects of a decision. Empowering courts can also mean making courts more independent from other relevant actors, so that courts are not beholden to other interests. Here, studies of court empowerment may focus on mechanisms of judicial selection, retention, promotion, discipline, or dismissal, along with judicial tenure.¹

Court activation examines how courts, once empowered, are triggered to decide cases. As noted above, laws regarding standing or jurisdiction can narrow or broaden who is able to activate courts, and in some cases judges themselves may have the power to initiate investigations or attract cases. Beyond formal, de jure rules governing how accessible courts are and who is allowed or empowered to activate courts, existing research emphasizes a variety of de facto material and nonmaterial factors that shape whether actors are able, in practice, to trigger courts.²

Research on decision making examines how and why judges vote on issues or decide cases, either individually or collectively as collegial bodies. Various factors are leveraged to explain decisions but two approaches dominate: the attitudinal or ideological model, which anticipates that judges’ political preferences drive decisions,³ and the strategic model, which anticipates that judges have policy preferences but that they pursue these preferences while also considering constraints imposed by other actors, institutions, and contextual circumstances.⁴

Last, once decisions are rendered, judicial impact research examines the aftermath of those decisions. Do elected officials comply with or resist the ruling? Might they even retaliate, seeking to curb the power of the court, or even impeach judges or dismantle judicial institutions? This area of research is underdeveloped in comparison to the previous three. Notable contributions in the reviewed works include the entries by Andrea Castagnola and Aníbal Pérez-Liñán, and by Gretchen Helmke and Jeffrey K. Staton, both in Courts in Latin America, as well as Diana Kapiszewski on retaliation and compliance patterns in Argentina and Brazil, in High Courts and Economic Governance.

The concept of judicial power operates across all four areas...