by Matthew M. Taylor. Stanford: Stanford University Press, 2008. 248pp. Cloth. $55.00. ISBN: 9780804758116.
Reviewed by Kathryn Hochstetler, Department of Political Science, University of New Mexico. Email: hochstet [at] unm.edu.
Matthew Taylor’s book is one of a set of recent volumes tracking the rather surprising emergence of the judiciary as an important actor in post-transition Latin American politics. His central argument – strongly supported in the book – is that a number of recent policy decisions in Brazil simply cannot be understood without taking account of the interventions of the courts at key moments. A political scientist, Taylor places this argument in the larger context of recent disciplinary discussions of “veto players” and the ways that the number and preferences of such actors shape policy discussions and especially the ability to generate policy change. In his view, the judiciary is not simply another veto player placed alongside the executive and legislature, however. Instead, Taylor views courts as essentially reactive actors, who must be activated by others. What courts actually do in his causal story is to provide “veto points,” political moments when social and political actors might use judicial strategies to block policy if they are institutionally and politically placed to do so. This is a complex and sophisticated argument that leans heavily on institutional factors such as legal standing to explain the courts’ influence, without losing sight of tactical choices particular organizations might make within their institutional opportunities to use the courts to make or block policy. Taylor’s own phrasing is that “The broad premise on which this book is founded is that the rules governing access to institutional venues for policy contestation matter significantly to final policy outcomes” (p.5).
Empirically, Taylor begins by explaining the Brazilian federal court system, with its five “highest” courts (the constitutional court, the Supreme Federal Tribunal, is the highest among “equals” in practice) and corresponding regional courts. By the design of the democratizing 1988 constitution, the courts have lots of judicial independence, both from elected branches and for individual judges, and offer access to many more actors than in Brazilian history and in most other current Latin American cases. For example, corporate actors, like unions and political parties, have standing to bring constitutional cases directly. Consequently, the courts carry a staggering caseload and consume many resources. An internal legal culture of protecting the vulnerable and promoting societal well-being is overwhelmed by the congestion of the court system. The net result is that individuals have a hard time using the courts to contest policy that harms them, while opposition groups can block policy or even reverse it or, conversely, insist on its implementation. [*803]
The remainder of the book tracks specific dimensions of when groups choose to activate the courts and when they are likely to be successful. Taylor uses multiple methods to answer these questions, shifting between case studies and more comprehensive surveys. Thus Chapter 3 focuses on the nature of the policy issue, using eight exemplary cases to discuss four possible policy types (inspired by Lowi): those with concentrated costs and benefits, those with distributed costs and benefits, and the two mixed types. He concludes that groups are most likely to decide to pursue a court strategy to contest policy when benefits are widely distributed across society, while costs are heavily concentrated on a small number of actors. In Taylor’s prototypical case, the civil servants disproportionately harmed by proposed social security reforms indeed peppered the courts at all levels with challenges wherever they could claim standing.
They were not particularly successful, and Chapter 4 provides some insight into the broader patterns of success and failure in the courts. This chapter focuses on just one mechanism, the Direct Action of Unconstitutionality (Ação Direta de Inconstitucionalidade, or ADIN), but catalogues all 1000+ instances of its use between 1988 and 2002. This is the chapter where Taylor introduces the concept of the veto point, with the constitutional standing to file an ADIN marking a very clear veto point, as a decision of unconstitutionality can stop a policy in its tracks. Actors who are minorities in electoral politics thus gain a very powerful tool to block policy, and can acquire policy influence simply because they have access to this tool. Nine different actors have such standing in Brazil following the 1988 constitution: the prosecutor general (the head of the Ministério Público; see McAllister 2008 for an excellent discussion of this actor), the president, leaders of the Federal Senate, leaders of the federal House of Deputies, state governors, the national bar association (Ordem dos Advogados do Brasil, or OAB), political parties with representation in the national congress, and unions and other class associations with national representation. Using a binary logit analysis, Taylor finds that state actors and the bar association are the most likely to be successful when bringing ADIN cases, and that cases challenging policies on the judicial structure and judicial benefits are most often successful. There are few significant results for different types of law or different administrations. Notwithstanding these results, Taylor notes that judicial contestation is still more often successful for groups in the political minority than is contestation in the arenas dominated by electoral winners, the executive and legislature.
Chapter 4 singles out two actors that use opposing legal strategies to approach the courts: the OAB rarely uses its judicial standing to file ADINs, but is unusually successful, while opposition parties file many challenges to policies, but have the lowest success rates. Chapters 5 and 6 return to a case study strategy to analyze why these actors choose to make such different uses of their common institutional access. Opposition parties, notably the Workers’ Party, used a multi-level strategy, bringing not just large constitutional cases, but often using its broad grassroots membership to file multiple similar cases in lower courts. Its lower success rate is in large [*804] part due to its frequently expressive use of the courts to score political points or introduce a generalized sense of the illegitimacy of the opposed policy. This kind of use of the courts, even when legal failure is certain, has been paired with genuine legal challenges as well. In this way, the Workers’ Party makes unusually full use of the opportunities the courts provide to both discuss and challenge policy – and its standing to do so is also unusually broad in Brazil. The OAB, in contrast, has a privileged role in the court process, which it helped to enshrine in the 1988 constitution. Its use of the courts balances an “institutional vocation” (p.119) of constitutional defense with its institutional imperative to protect the interests of the legal profession. These aims sometimes coincide, but not as often as the OAB’s rhetoric might suggest. Because of internal rules and a more limited membership, the OAB is more circumscribed in the cases it files, which also contributes to its higher success rates.
Finally, a quick comparative chapter on the different roles four Latin American courts played in their national pension reform debates illustrates that the Brazilian experiences cannot stand in for the rest of Latin America. Its particular mix of judicial independence with comparatively broad standing arrangements made the Brazilian courts unusually viable as veto points for opponents of reform. Brazil may provide some important lessons for would-be judicial reformers among its neighbors, although its appeal will depend on how much those reformers favor policy checks. As Taylor notes in the conclusion, the implications for Brazilian democracy itself are somewhere between “ideal” and “abysmal” (p.158). What cannot be debated is that these particular judicial arrangements have had important impacts on the outcomes of Brazilian policy debates.
As this lengthy summary suggests, Taylor’s book is an important contribution to the emerging study of the Latin American judiciary. It is especially innovative in its focus on the policy impact of the courts – although his comparative chapter argues that the courts do not play such a large policy role in many countries. JUDGING POLICY is also the most comprehensive English-language study of the Brazilian courts to date, filling an important gap in our understanding of an increasingly important institution in an increasingly important country. Even as the most comprehensive study to date, it is far from complete. With the public sector accounting for 79% of all litigation in the Supreme Federal Tribunal (the highest constitutional court) in 1999-2003 (p.40), its judicial strategies deserve their own study, as do the extensive state-level court systems with their 2400 districts (p.25). So do the sectoral military, electoral, and labor courts. Other unusual legal developments, such as the comparatively large role of the public prosecutor or Ministério Público, have now received some study (McAllister 2008), but still need to be woven more systematically into the story of the Brazilian judiciary and how it operates, and for whom. No single work can cover all issues of interest, of course, but Taylor’s rationale for his particular empirical focus is not fully developed. On the other hand, his research strategy of moving between different methodologies and approaches [*805] is salutary, especially in the way the detailed case studies of the OAB and the opposition parties unravel how those actors’ choices help account for the large-n patterns seen in court usage. In short, this book is an excellent starting point for what will hopefully be a number of additional studies of this emerging policy shaper.
McAllister, Lesley K. 2008. MAKING LAW MATTER: ENVIRONMENTAL PROTECTION AND LEGAL INSTITUTIONS IN BRAZIL. Stanford: Stanford University Press.
© Copyright 2008 by the author, Kathryn Hochstetler.