by Gretchen Helmke and Julio Ríos-Figueroa (eds.). Cambridge, UK: Cambridge University Press, 2011. 352pp. Cloth. $99. ISBN:9781107001091.
Reviewed by Linn Hammergren, Independent Consultant. Email: lhammergren29 [at] gmail.com
Helmke and Rios-Figueroa’s edited volume, Courts in Latin America, provides an excellent overview of recent political science research on the role of Latin American high courts with constitutional review powers in enforcing horizontal and vertical accountability vis-à-vis the other branches of government. It includes a good share of the Latin American and American authors who have investigated this topic and of the approaches used. This review begins with two caveats, however. First, the title is misleading inasmuch as for many readers, including the reviewer, the term “courts” refers to the entire judiciary; a subtitle indicating the narrower focus would have been useful. Second, while an essential work for anyone interested in the specific topic, the contents are likely to be less accessible to others. This is hardly the place to begin to understand the role the judiciary plays in contemporary Latin American politics. The editors’ nodding acknowledgment that there are other issues is pretty much an understatement, as discussed in the last section of this review.
The book is the product of a 2008 conference. To their credit, the contributors have both stuck to the same analytic framework and cross-referenced each other extensively. The editors’ opening and closing chapters do more than usual to pull the chapters together. The framework focuses on explaining why Latin American constitutional courts’ (and supreme courts with constitutional review powers – a subtitle would admittedly have been long) are increasingly willing to counter other government actors (but the executive in particular) in two areas: arbitrating inter-branch conflicts and enforcing basic rights. Kapiszewski, writing on Brazil, does include a third category, economic governance, which, in another form (constitutionality of laws and policies?) seems worth adding. While it all may be about rights or the distribution of powers, constitutional bodies have received most attention for curbing or directing government policy as per the 2008 decision of Colombia’s Constitutional Court ordering the government to redesign its entire public health program, a far earlier decision by Costa Rica’s Fourth Chamber invalidating the entire transit code because it allowed the Ministry of Transport to set fines, or the numerous decisions by Brazil’s Supremo Tribunal Federal (STF) on how pensions and payments pending from earlier economic programs would be calculated. In countries with rights-rich and very detailed constitutions, these entities are increasingly called on to decide among competing rights and to determine not inter-branch conflicts, but rather whether a law or government policy accurately reflects what the Constitution allows or dictates.[*686]
The other half of the framework consists of a series of hypotheses to explain why courts decide against government wishes. Factors explored here include: variations on the strategic or spatial model (political space allowed by party fragmentation and its impact on judges’ “strategic” considerations as to their futures on or off the bench); institutional design; and judicial attitudes (related to the latter but also analyzable and analyzed independently).
Contributions can be divided, not entirely neatly, into those featuring a qualitative approach and those pursuing more quantitative methodologies. Of the latter only Rios-Figueroa makes a cross-national effort, not entirely successfully if only because the space allotted does not allow him to explain his coding system. Also his use of countries’ average scores over the period 1945 to 2005 for de jure aspects of judicial autonomy and stability seems odd, given how much has changed, de jure and de facto, since the 1980s. The other three largely quantitative approaches (Rodríguez-Raga on Colombia; Sánchez, Magaloni, and Magar on Mexico; Scribner on Argentina and Chile) are one- or two-country applications and consequently more illustrative than conclusive as regards the bigger themes. Most like Ríos-Figueroa would have benefitted from methodological annexes providing greater detail on how they constructed their variables. Helmke and Staton’s final chapter, presenting a model to understand judicial activism should be counted here as well, although it is entirely theoretical, if drawing on the conclusions of the other studies. Its potential application confronts the same challenge as all quantitative and most qualitative approaches – the heavy dependence on the authors’ own classification and thus coding of events.
The entirely or largely qualitative approaches (Wilson on Costa Rica; Couso and Hilbink on Chile; Brinks on Brazil; Kapiszewski on Brazil; Bill Chavez, Ferejohn and Weingast comparing the U.S. and Argentina; and Castagnola and Pérez Liñán on Bolivia) are more accessible for the general reader. While often using strategic game theory to frame their discussion and adding descriptive statistics, they tend to talk their way through their arguments and provide a good deal more context than the abstract, quantitative approaches. In conjunction, the nine substantive chapters and the two pieces by the editors do coincide on some interesting findings and provide additional insights one wishes they had pursued further.
First, the authors using some aspect of the strategic model do find that party fragmentation tends to coincide with courts’ willingness to override government and especially presidential preferences. This nearly commonsensical conclusion might, however, be tempered by an alternative hypothesis generally not considered – that party fragmentation either produces more fragmented courts or that more divided courts and party fragmentation are both consequences of a breakdown in former political consensuses and thus that it is not judges’ strategies but rather their more diverse preferences and loyalties that explain the results. Also, the strategic modelers never seem to decide whether their unit of analysis is [*687] the court as a single actor or the individual judge. There are often dissenters even to critical decisions, raising the question of whether some judges are less strategic or whether courts orchestrate their collective decisions to allow some dissent without posing an open threat to political actors.
Second, and possibly more important, the impact of institutional design (especially appointment systems and tenure) becomes less decisive than the “reigning wisdom” holds. While not a unique finding, it is important for judicial reformers who seem to overlook the potential for undermining the best of designs, or, the explanation offered by the authors, the difficulty of predicting impacts on judicial incentives. However, the design variations considered by the authors are very broad (easier to quantify), but the devil may be in the details.
Third, especially as examined by Couso and Hilbink, and Sánchez et al., judicial attitudes, while partly a consequence of appointment systems, also have an independent explanatory value. Kapiszewski touches on this topic for Brazil, as well, raising a point deserving more comparative exploration. She depicts STF justices as coming from more political and judicial than academic backgrounds, attributing to this their “pragmatic” approach to deciding on issues like economic policy. Here pragmatic means more attention to political and economic consequences as opposed to the exclusively rights-oriented approach of say the Colombian court members. Brinks characterizes the Brazilians less favorably as “faithful servants of the regime” However evaluated, the explanation is clearly more attitudinal than “strategic” given the STF justices’ unusually secure careers.
A fourth issue raised without further development is the role of litigants. Courts are reactive, depending nearly exclusively on the parties to initiate disputes and frame the issues to be treated. Institutional design helps determine what gets to “court” (e.g. the difference between Costa Rica’s simple process for filing an amparo and the very complex rules in Mexico; the impact of a diffuse system in lowering the percentage of pure rights cases going to the highest courts. This especially affects Brinks findings on Brazil; its mandado de segurança is alive and well in the state courts where it is often used to protest taxes and administrative abuses. Institutional design also helps to determine the types of conflicts prevalent in a country at any given time. However, citizens’ rights awareness; the availability of a public law bar, subsidized defense (or an entity like Brazil’s Public Ministry) and NGOs to assist them; and government investment in social protection programs (or as in Brazil, a pro-worker labor court system which handles what might become rights issues in other countries) also influence litigant activism and their choice of which disputes to pursue constitutionally.
While the chapters speak to each other, their more specific emphases do detract from a truly comparative picture. This could be the next step for this group’s project, but it will require still more cross-fertilization and possibly a better understanding of the issues extra-regionally. A passing comment that European courts are more subordinate to the other branches of government [*688] (Chavez et al.,pp.242-243) overlooks the growing activism of Europe’s constitutional courts which Brinks does recognize (p.133). Here the issue of what is meant by court comes into play. A certain semantic confusion pervades the volume, and not just the title. For example, Constitutional Courts do stand at the judicial apex jurisdictionally, but never organizationally. Incentives of lower level judges are thus not shaped by these bodies but rather by the judicial councils or Supreme Courts (some with constitutional powers) controlling their careers.
As an approach to understanding Latin American judiciaries there is a certain looking-under- the-streetlight-for-the-keys quality to the work. As the editors note (p.7) the focus is partly a result of the availability of data (generally poor in Latin America, but less so, at least as libraries of judgments, for higher courts). However, contrary to what they suggest, the political activism of constitutional courts may not be the most significant part of the picture. A few contributors make passing reference to a series of related issues of equal or perhaps greater importance: impact of constitutional rulings on policy making and implementation; on-going debates about how far constitutional bodies should reach in telling governments what to do (as opposed to just telling them what they can’t do); impacts on the decisions and operations of other judges, and so on. Moreover, there is the rest of the judiciary to consider; numerically its actions have greater consequences for more ordinary citizens. The Brazilian STF gets over 100,000 filings annually but by its own count, the rest of the judiciary receives 24.2 million (Conselho Nacional de Justiça, 2010). Throughout Latin America one explanation for the increasing use of instruments like the amparo, mandado de segurança and tutela, all requesting direct relief for alleged rights violations, is that the ordinary courts are extremely slow and inefficient. This is so much so that Colombian experts now speak of the need to tutelizar ordinary proceedings (i.e. make then as simple and rapid as tutelas). Until this happens, and absent a better filtering system, the use of the amparo or tutela will only complicate the situation. In diffuse systems, where they may be presented to any judge, they crowd out attention to other cases. More generally, they have become a way of delaying final judgments in ordinary cases (what Latin American lawyers call “buying time” for clients). One significant factor not noted by any author is the use of amparos and the like to override judgments -- not permitted in Costa Rica, allowed in Colombia before any judge, and in Mexico and Brazil reserved for federal courts. This considerably alters the quantity and composition of cases reaching the “constitutionally empowered courts.” Amparos heard by Costa Rica’s constitutional chamber only address concrete rights violations by an administrative or private actor, whereas the 90 percent of the STF’s cases composed of agravos de instrumento and recursos extraordinarios are largely appeals against interlocutory and final decisions made by other judges, disguised as due process violations.
These critical comments are not meant to deny the importance of this work. It provides an excellent and fairly comprehensive review of recent research on two interrelated questions – to what extent and under what conditions are [*689] Latin American high courts willing to break with their traditional subservience to other government actors? Conceivably the same group of researchers and others could go on to refine this investigation, but it may now be time to 1) determine what difference the new trends make as regards governance, policy making, and the real impact on citizens and 2) to get out from under the lamppost and begin to look at the rest of the “courts” and how well they are doing in the new era.
Conselho Nacional de Justiça, 2010, Justiça en Números.
© Copyright 2011 by the author, Linn Hammergren.