Does anyone remember, beyond the extra-ordinary case of the ‘Trial of the Juntas‘, any of the federal judges or Supreme Court justices of the 1980s? Even those grey-haired individuals nostalgic for the Raúl Alfonsín era probably couldn’t name one. And yet, everyone knows who we are talking about – and could maybe even identify them in a restaurant – when we say the names of some of today’s judges: Servini, Bonadio, Oyrbide, or Lijo.
The judicialisation of politics, meaning the growing influence of the courts over areas typically reserved for other powers, is a global trend with multiple causes.
The first, a positive one, is the expansion of rights. In many countries, especially with liberal traditions, the judiciary was first renowned for protecting individual freedom and private property. But in a movement that began at the start of the 20th century and accelerated post-World War II, new rights were added related to living conditions, work, and people’s well-being.
Then, in the 1980s, came the “collective rights”, those targeting society as a whole, like the right to a safe environment or access to culture. With it’s own nuances and timing, Argentina followed this trend, first through the ‘Social Constitution’ from President Juan Perón’s first term (including its main legacy of the workers’ rights enshrined in article 14b) to the latest constitutional reform in 1994.
The new catalogue of rights made lawsuits and litigation possible over a growing number of issues, especially after 1983 when the return to democracy created the opportunity for a new role for the courts. According to Sociologist Javier Couse, it is something common to those countries in the third wave of democratisation. Following years or – in the case of Spain, Portugal, and Argentina – decades of dictatorships, society began to look to “liberal judges” to correct the authoritarian excesses of a political class that it viewed as still contaminated by the past. It followed the Tocquevillian thinking that judges had the power to block the tyranny of political assemblies.
Strengthened by a recovery in self-esteem and, in contract to the other state powers, with institutions still intact, the judges lorded over this new “culture of rights” that consolidated democracy and expanded their radius of action to cover more and more aspects of public life. Not all of the consequences of this were bad: one clear case of positive judicial activism was the ‘Trial of the Juntas’ and the spillovers from it, which prompted Alfonsín to try and slow the judges’ pursuit of justice with the ‘Full Stop’ and ‘Due Obedience’ laws.
Every country lived through this phenomenon differently. The judicialisation trend accelerated under institutional designs made to decentralise power – federal systems like Argentina – or which incorporated new legal mechanisms like the 1994 constitutional reform. The trend also prospered in those places where legal changes were pushed from the bottom up, via specialist structures that allowed human rights groups, NGOs, and social movements channel their demands to the judiciary. This could be progressive (such as the Centre for Legal and Social Studies, CELS) or conservative (the School for Lawyers in the Federal Capital).
The judiciary is obliged to protect the rights of all citizens. This could be, for example, the rights of a minority against the common excesses of the majority: if the governor of an Argentine province wanted to prohibit access to education or healthcare to all Bolivians, or Peruvians or Jews, most would probably agree that the courts should stop them from doing so. The problem emerges when judges move beyond the strict defence of rights; when their role ceases to be that of a “negative legislator”, one that annuls unconstitutional decisions, and become a “positive legislator”, trying to mould laws rather than control them.
Why is this a problem? Firstly, because judges generally lack the tools to resolve many of the issues they rule on. A judge’s quality of sometimes having to go against the prevailing public opinion is derived from a particular status in the state: the judiciary is the only one of the three powers that is not democratically elected, that guarantees a position of stability, and requires that its members have a university degree and are comfortable with jargon even more dry than in economics. Judges are not properly prepared to solve many of the problems put in front of them: they can issue rulings, rightly or wrongly, but not govern.
The problem emerges when judges move beyond the strict defence of rights and try to mould laws rather than control them.
This doesn’t mean that judges can’t be political in some sense. Coming usually from a similar socio-economic background and sharing similar ideologies, judges are not isolated from but a product of the political context in which they are appointed. Many of them even have direct political experience, and some parties like the Unión Civica Radical (UCR), are noticeably over-represented in the courts.
But the consequences of this judicialisation of politics are not limited to the risks of delegating decisions that should be made by elected representatives to the most aristocratic organ of the state. The bigger problem, perhaps, is that it can prolong conflicts. Rather than being caused by the eagerness of magistrates to play a key role, this judicialisation is in most cases a reaction to the difficulty that party officials have in finding answers. It is, as Lucas Arrimada claims, a result of political silence.
Due to its disperse institutional framework, its deep federalism, and a liberal tradition that causes skepticism towards any concentration of power, the US has a long history of judicial activism. Particular moments of conflict include the Supreme Court’s efforts to block Roosevelt’s New Deal (until the president threaten to replace its members), or the positive ‘Warren Court’ rulings against racial segregation in schools and on public transport. The famous ‘Miranda warning’ – “You have the right to remain silent, any thing you do say may be used against you…” – is a guarantee that was established by a court ruling.
In Argentina, after decades in which the judiciary passively followed different governments, the judicialisation of politics has become a daily phenomenon, evidenced simply by scanning the newspapers. Quantifying this trend is difficult but not impossible: in ‘The Supreme Court versus the government’, Gustavo Arballo analysed 502 “political” cases that formed part of the public agenda and were resolved by the high court between 1984 and 2013. He arrived at the conclusion that there has been a significant increase in the last decade.
A simple glance over recent history confirms that the outcome of political initiatives from the Executive that enjoy cross-party legislative support – the Beagle Treaty in the 80s, privatisations during the Carlos Menem years, the Media Law of 2009 – ends up being decided by the Supreme Court, putting us in the sometimes uncomfortable position of accepting the legality of decisions we disagree with. With this in mind, it is worth pointing out that the court involvement in these three cases and many others, was started by the political parties that had lost the legislative debate, showing how those often most responsible for the judicialisation of politics are in fact… politicians.
There are other extreme examples. In Brazil, the judiciary blocked the highly political decision to appoint a minister (ex-president Lula was unable to be sworn in a Cabinet Chief) with the argument that position would give him the tools to evade court proceedings against him. In Argentina, when there was no way to co-ordinate the proper transfer of power from Cristina Fernández de Kirchner to Mauricio Macri, it was a judge (Servini de Cubria) who decided to leave the country leaderless for one night between the exit of one to the swearing in of the other. This led to the short presidency of [sitting Senate leader] Federico Pinedo, that was so celebrated on social media.
These days the judicial activism has become most melodramatic in cases of corruption, which always appear when a political cycles ends amid accusations, arrests, and confessions. It is, to some extent, inevitable. When public attention is more focused on political leaders rather than parties or programmes, personal reputation become decisive, and so do efforts to damage it via scandals. However, as the sequence of events in 1990s Italy showed (Mani Pulite-crisis of represenation-Silvio Berlusconi), the clean up operation doesn’t always lead to the planned outcome. This does not imply that these processes should be avoided, just that we must prepare for their consequences. Because if judges gain too much power then the natural political response is to try and influence them. The coin has two sides: the judicialisation of politics leads to the politicisation of justice.