doing courts justice? studying judicial politics in latin america

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Doing Courts Justice? Studying Judicial Politics in Latin America Author(s): Diana Kapiszewski and Matthew M. Taylor Source: Perspectives on Politics, Vol. 6, No. 4 (Dec., 2008), pp. 741-767Published by: American Political Science AssociationStable URL: http://www.jstor.org/stable/20446826Accessed: 21-10-2015 04:56 UTC

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Articles

Doing Courts Justice? Studying Judicial Politics in Latin America Diana Kapiszewski and Matthew M. Taylor

The past decade has brought an unprecedented boom in the study of courts as political actors in Latin America. We examine the extraordinary diversity of academic research on judicial politics in the region, identifying the key questions, findings, and theoretical debates in the literature, highlighting important conceptual disjunctions, and critiquing the research methods scholars of judicial politics in Latin America have employed in their work. We dose by suggesting new avenues of inquiry to help advance the collective effort to understand the roles courts play in Latin American politics.

C ourts are at the heart of a new wave of political science, socio-legal, and public policy research around the globe. Answering a clarion call for fur

ther comparative work,' scholars of courts from Argenti na2 to Zimbabwe3 are increasingly examining the factors that drive judicial decision making, the role that judiciaries play in democratic politics, and the practical and political consequences of courts and law. The countries of Latin America, with similar legal-political traditions and broadly parallel political histories, provide a particularly promis ing batch of cases for analysis and comparison. Until recently, however, the study of courts was not a

priority for scholars of Latin American politics: after all, one of the key lessons of the self-prodaimed demise of the Law and Development research program three decades ago was that courts were seldom likely to have a positive effect on political development in the presence of execu tive over-reaching.4 Even though the transitions to democ racy of the 1980s had significant implications for Latin

Diana Kapiszewski is Assistant Professor ofPolitical Science at the University of California, Irvine (dianakap@uci. edu). Matthew M. Taylor is Assistant Professor ofPolitical Science at the University ofSdo Paulo (taylor@usp. br). A number ofscholars offered helpfulfeedback on earlier drafts ofthis manuscript, including three anonymous reviewers at Perspectives on Politics, as well as theparticipants on the panel on Latin American judicialpolitics that we orga nized at the 2006American Political Science Association annual meeting, especially Tom Ginsburg, who served as dis cussant, andMartin Shapiro, who servedaas chair. Jefrey Sta ton and Robert A. Kagan offered comments that were particularly generous in scope and quality. We also appreci ate the help ofallofthescholars who responded to ourinfor mal e-mailpolls regarding recentpublications in the field.

American judiciaries, most research on courts in the region began well after the "third wave" had passed through most Latin American countries.5 Indeed, until the first major post-authoritarian volume on courts in Latin Amer ican democracies was published in 1993,6 most compar ative political science research on political institutions in the region remained focused on presidents, parties and assemblies.

A first set of works on Latin American courts focuses primarily on the judicial reform efforts of the late 1980s and 1990s, and on issues of transitional justice. This lit erature has emphasized the challenges of reform (in par ticular, of simultaneously addressing the problems of judicial independence, access, efficiency and accountabil ity),7 as well as the degree to which reform led to the improvement of courts' performance in ways that might contribute to economic growth.8 A second strain in the literature examines the ways in which the region's new democracies attempted to address remaining authoritar ian enclaves and provide transitional justice.9 The focus of the literature has widened more recently

to encompass two broader themes: courts' contribution to social justice and judicial politics. Research on the first theme focuses on the role of courts in admittedly unequal Latin American societies and, especially, how they can contribute to bridging gaps in the application of law, including the breach between formal legality and actual practice.10 Scholarship on the second theme examines the performance of courts as political institutions, at both the micro-political level (deciding who gets what, when, and how), as well as the macro level (ruling on disputes between branches of government, and acting as a check and a bal ance on both the executive and legislative branches).

The focus of this artide is this fourth research theme: judicial politics in the contemporary period. This strain of the literature analyzes courts first and foremost from the

doi:0.1 01 7/S105375927080813899 Decmber 2008 1 Vol. 6/No. 4 741


Articles I Doing Courts Justice?

perspective of their involvement in politics: it examines the institutional structures that underpin and shape that involvement; explores how judges take decisions on polit ical issues; and examines how courts distribute political power and affect policy outcomes. The field comprises various sub-themes, such as the judicialization of politics, judicial independence, and judicial power, and scholars utilize myriad approaches to examine and explain varia tion in these phenomena, ranging from legal scholars' focus on factors such as the legal process, doctrine, and juris prudence to more typically political science emphases such as the impact of judicial institutional structure and cul tural norms, and the strategic and attitudinal motivations for judges' decision-making. Scholars also use a variety of qualitative, quantitative, and game theoretic methods to analyze data and draw inferences, and to carry out various types of comparative inquiry.

Perhaps due to this diversity, the research program ana lyzing judicial politics in Latin America remains largely uncoordinated. Insofar as the questions being asked vary among scholars, this lack of coordination is unfortunate but understandable. Yet a suboptimal amount of cross fertilization occurs among scholars asking similar ques tions but studying different countries, or using different approaches or analytic methods. Further, little compara tive work is conducted-either cross-nationally, or within country cases (across provinces, time, areas of law, policy arenas, or levels of the judiciary, for example).

This article examines the rich breadth of research on judicial politics in Latin America with the goal of contrib uting to the coherent and progressive accumulation of knowledge in this field. The remainder of the article pro ceeds in five sections, in which we review the main ques tions scholars have posed regarding courts and politics in Latin America; then examine the literature's main find ings and theoretical debates. We next highlight key con ceptual debates, analyze the research methods scholars have employed, and we close by suggesting some directions in which the study of judicial politics in Latin America might proceed.

Main Research Questions in the Surveyed Literature The Boundaries of Our Inquiry Lest this enterprise become too unwieldy, we have delim ited the literature selected for inclusion in our survey using four essential criteria. Each piece surveyed here (1) focuses primarily on the subject of judicial politics as defined above; (2) is written in English; 11 (3) is either a dissertation com pleted, or a book, book chapter, or major academic jour nal article published, between 1980 and 2006; 12 and (4) examines at least one Latin American nation.

Despite our attempts to be systematic, drawing bound aries around the large and heterogeneous literature on

Figure 1 Type of publication

Articles 45% _

Chapters 32%

Unpublished Books dissertations 12%

11% Note: published dissertations are counted only once, as books.

judicial politics in Latin America involves difficult and controversial decisions. Undoubtedly we have failed to include some works that others will consider germane to judicial politics. With these caveats in mind, however, we are reasonably confident that the 90 pieces considered here are representative of the contemporary state of the debate on judicial politics in Latin America. We begin our inquiry by offering a few parameters.

Figures 1-3 show the distribution of this literature in terms of type of publication, scope, and countries under analysis.

These figures contain some signals that the study of judicial politics in Latin America remains a maturing field. First, the bulk of the work comprises short pieces (book chapters and articles) rather than full-length books. The few books that focus exclusively on the topic are more or less equally divided between compilations of disparately themed single country chapters, and more in-depth case studies (often springing from doctoral dissertations).13 Fur ther, the figures demonstrate that scholars of judicial pol itics in Latin America tend to focus on one country rather than engaging in explicitly cross-national inquiry. With respect to countries studied, much of the research analyzes four of the 21 countries in the region (Argentina, Brazil,

Figure 2 Scope of research

More than one country

Single country 31%

study 69%

742 Perspectives on Politics


Figure 3 Countries studied

Mexico 18%

Braid _ 1 6 t o~~~~~~6

Argentina 31%

Uruguay J_ s 11 i l lrChile 1% 15%

Bolivia_ _ _

1% Colombia Guatemala Costa Rica 5%

2% / / 1 4% El Salvador Peru Venezuela

2% 2% 3%

Note: We have excluded from this count edited volumes composed of country chapters (each chapter is counted separately here), works that compare more than 5 countries simultaneously, and works that do not specifically identify a particular Latin American country.

Chile, and Mexico); most Latin American judiciaries have been examined in only one or two chapter-length studies or have not been studied at all. Finally, although it is not shown in these figures, the majority of the work on judi cial politics in Latin America focuses predominantly on high courts (supreme courts or constitutional courts); full national or federal court systems come in a distant second place, only scant attention is paid to state court systems, and practically no work examines intra-judicial relations or dynamics.

Key Lines of Inquiry in the Surveyed Literature We place the literature surveyed in this article in three categories: one that focuses on judiciaries' interactions with other branches of government; a second that examines the degree to which judiciaries affect public policy outcomes; and a final one that provides classificatory or mainly descrip tive analyses of courts and legal institutions.

Interaction between thejudicial and elected branches. Three questions underlie much of the research on the inter action between the judicial and elected branches in Latin America. First, why do executives delegate power to courts, and what sort of formal power is delegated?"4 A second question, usually couched in terms of the judicialization of politics, is whether courts are being increasingly drawn into political debates, and if so, in what patterns this pro cess occurs.15

The third and most-researched question regards whether and when courts check the elected branches. While some work in this vein analyzes judicial assertiveness in author itarian settings, most research examines the question under democratic rule.16 The bulk of this literature is steeped in a normative supposition that checks on the elected branches-and especially on the region's powerful executives-are a positive occurrence. While some of this research is largely descriptive, seeking to understand whether and how courts actually act to check executives, most studies adopt an explanatory framework.'7 Some scholars query the political conditions under which jus tices or courts rule against the government.'8 Others ques tion the extent to which public or societal support has permitted courts to challenge executives and implement judicial policy preferences,'9 or the degree to which soci etal demands can activate courts and influence the direc tion of judicial decision-making.20 Others investigate the importance of institutional factors: Domingo, for exam ple, asks whether institutional changes increase the abil ity of courts to act independently of the executive;21 Brinks examines the degree to which judicial reform affects judges' preferences and decisional independence;22 and several others explore how institutional and constitu tional design affect judicial independence and the scope of judicial decisions.23 Most of these inquiries concern countries-such as

Argentina and Mexico-featuring hyper-presidential sys tems and a tradition of judicial dependence. In such set tings, the expectation is that courts will be neither willing nor able to challenge the elected branches, and the intrigu ing question becomes the particular configuration of con ditions under which they will dare to do so. A smaller group of scholars-almost entirely students of the Chil ean judiciary-reverses the query, questioning why seem ingly independent courts fail to enforce checks on the executive and instead defer to the government.24 Finally, a small subset of work addresses both questions. Huneeus, for example, seeks to explain the evolution of Chile's judi ciary from a deferential into a (selectively) less quiescent power, and Staton asks why Mexican courts authorita tively resolve political conflict at some points, but seem to avoid controversial issues at others.25

Courts as policy-makers. The second main line of inquiry analyzes courts' effects on public policy. A recent Inter American Development Bank publication summarizes four key roles Latin American judiciaries play in the policy making process (veto player, policy player, impartial ref eree, and societal representative) and posits that levels of judicial independence are a major determinant of courts' ability "to improve the stability, public-regardingness, or adaptability of policy choices."26 While this report glosses over the potential role of courts as reluctant veto points activated by other political actors, and puts less emphasis

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than it might on the fact that not all judicial intervention in the policy realm is likely to be policy-enhancing, other pieces in this line of inquiry develop these issues.

Rfos-Figueroa and Taylor, for instance, question the effect of different institutional structures on policy outcomes, inquiring how various facets of judicial independence and judicial review may lead to different patterns of policy contestation in Brazilian and Mexican courts.27 Others explore the effects of changes in judicial structure on pol icy outcomes and political debates28 and on courts' influ ence in specific policy arenas.29 And Iaryczower et al. seek to understand how lobbying in legislatures may influence the role courts play in policymaking indirecdy, by "alter ing the political constraints under which [they] operate."30

Finally, a small but growing subset of the judicial poli tics literature focuses on courts' effects on social policy as a result of societal actors' initiation of social and economic rights litigation.31 Courtis, for example, examines why it might be difficult for Latin American judiciaries to assume and play an effective role in the creation of social policy.32 In a similar vein, Lima Lopes, exploring the Brazilian case, discusses the pressure that social rights litigation places on the judicial branch due to its public policy implications, highlighting the "distributive sting" rights-enforcing deci sions on such cases can carry.33 And Uprimny notes that since 1991 the Colombian Constitutional Court has made high-impact decisions that have expanded social policies consistent with the broad rights laid out in the expansive 1991 Constitution.34 He outlines the effects the Court's rulings have had on the design of economic policy, and describes the controversies that surround the Court's pol icy role. In sum, this work suggests that courts' assump tion of a role in socio-economic policymaking is contested: judges and policy-makers alike are aware that judicial deci sions on cases regarding social and economic rights can have significant policy and budgetary consequences. More attention to courts' willingness and ability to engage in social policy-making and to the implications for govern ability and democratic stability is certainly warranted.

Classificatory and descriptive analyses of courts and legal institutions. A final line of inquiry encompasses both the comparative classification of regional courts and judicial structures, and more historical descriptions of the evolu tion of courts and legal systems. With respect to the first, a number of early studies focused on identifying the struc tural features of Latin American politics in which judicial dependence was rooted.35 Later studies sought to develop more encompassing measures of judicial performance,36 and to dassify constitutional adjudication systems in com parative perspective.37 Such work has contributed to the development of uniform variables and datasets that can, in turn, serve as a basis for further comparative research on judicial performance, and on particular constitutional features and their effects.38

A second subset of literature in this more descriptive line of inquiry is composed of historically-based case stud ies of the dynamics and institutions crucial to the evolu tion of judicial politics in the region: judicial review,39 judicialization,40 judicial independence,4" the broader social consequences of legal change,42 and the functioning of the legal system and the relationships between law, poli tics, and society. 43

In sum, the scope of inquiry undertaken by scholars of judicial politics in Latin America since 1980 has been quite broad. Significant efforts have been made to classify important judicial structures and institutions, and the lit erature has asked a series of intriguing questions regarding the causes and determinants of judicial involvement in politics and policy debates. The next section examines the findings and theoretical debates this research has generated.

Findings and Theoretical Debates In this section we outline the findings and theoretical debates that have arisen in the literature on judicial poli tics in Argentina, Brazil, Chile, Colombia, and Mexico. Scholars of Latin American judicial politics have focused the most attention on these five nations, and the resultant scholarship contains the main conclusions that have emerged in the broader literature. We find five main areas of consensus and debate.

Activating the Judiciary The first area of scholarship examines who accesses courts to contest policy, which institutional features facilitate and block access, and to what effect courts are used as an alter nate policy-making venue. In some countries, such as Costa Rica, broad access to the constitutional chamber of the high court means that policy is open to challenge by almost anyone with the energy to file suit.44 And in Colombia, expansive access to judicial review in combination with the creation of the Constitutional Court in 1991 have

meant a substantial rebalancing of power in Colombian society, as previously weak actors can now flex their mus cles through the judiciary.45 Smulovitz and Behrend exam ine the "judicialization of protest" in Argentina, analyzing how societal actors have used courts as an element in their mobilizations against particular government policies and practices, forcing political actors into both pre-emptive and reactive policy change.46

Other scholars working in this area, drawing on the "haves come out ahead" literature,47 describe the opposite dynamic: how judicial rules and structure advantage cer tain policy actors more than others in the court system and, consequently, in the political system more generally. Scholars of the Brazilian judiciary, for instance, explore the effects of the combination of relatively progressive (though extraordinarily inefficient) lower courts, with a relatively efficient high court that can only be directly



accessed by a small number of actors.48 This combination has meant that the entire judiciary has become a "power ful resource" for questioning or blocking decisions made in the political arena, while a few veto players with stand ing to file in the high court are especially well empowered to activate the judiciary to policy ends. The greater polit ical use of the courts has made the potentially destabiliz ing counter-majoritarian nature of abstract review stand out in high relief.49

The strategic use of full court systems-from lower courts through high courts-as a political bailiwick for policy opponents is a theme that is relevant across Latin America, particularly in view of the ubiquity of economic reforms in the 1990s, which implied significant costs for well-organized and entrenched interest groups that often times had considerable access to courts.50

Building Judicial Power A second area of scholarship seeks to understand how courts acquire power, and a subset of that work examines the dialectic relationship between judicial power and judi cial independence, as well as the interaction between judi cial power and judicial accountability.

Judicial power can be "delegated" by elected leaders who implement reforms to entrust power to judiciaries in new democracies, and it can be "constructed" by judges who zealously calibrate their decisions against the expected responses of the public and the elected branches. With regard to the first, Finkel's analysis of the Mexican case shows how political uncertainty can lead to judicial inde pendence when political incumbents delegate power to courts so as to preserve their rights in case they should become the opposition: she argues that the 1994 judicial reform, with its introduction of new judicial review pow ers and independence guarantees, was motivated by the ruling party's fear of losing power.51 The PRI, in other words, saw the writing on the wall, and sought the insti tutional protections gained by granting greater power to the courts.52 But the delegation of power to courts may occur even

when electoral defeat does not loom. As Domingo has noted, there are incentives for even well-ensconced exec utives to favor independent courts.53 Predominant among these is the view that courts may serve to legitimate cur rent policy decisions: while a more independent court may overturn a few policies here and there, when it supports the actions of the elected branches, the government can point to that sanction as legal legitimation.

In terms of "constructed" power, judges use a number of formal and informal strategies to build court power. As noted by several authors in the Gloppen et al. compen dium, courts may seek to construct power through sym bolic rulings in largely insignficant cases, rather than through hugely momentous legal judgments.54 As they

attempt to "grow" their institutional power, judges may seek out merely symbolic victories in cases with little prac tical repercussion.55 While most would agree that judicial power and judi

cial independence are inextricably linked, there is signif icant debate with regard to the nature of the relationship. In Brazil for example, the gradual construction of judi cial independence in an uncertain and extremely chal lenging institutional environment has been carried out piece-meal through elaborate kabuki-style shadow box ing between the executive branch and the judiciary. The high court in particular has used its power to secure for itself an "institutional environment where it can remain free from external political interference," via "token deci sions and declarations by the Court and its justices ... [which] function as a form of pressure bargaining to preserve autonomy." 56 It has been suggested, in contrast, that the Chilean judiciary had to engage in self-restraint (i.e., limit its own power) in order to retain independence:

the refusal of courts to actually exercise their powers of judicial control of the constitution . .. represented the continuation of a long held strategic stance aimed at maintaining the very auton omy and political independence that has historically allowed them to play a crucial role in the promotion and maintenance of the legality that has characterized the country.57

Finally, increasing judicial power inevitably raises the issue of judicial accountability, or the age-old question of

who guards the guardians. Given the counter-majoritarian character of judicial review, powerful courts may at some point issue decisions that anger a significant portion of the electorate. In the Colombian case, scholars wonder about the potential for backlash against the surprisingly progressive Constitutional Court.58 Similar questions regarding judicial accountability are addressed in Glop pen et al.:59 How unaccountable are courts, and at what point does their lack of accountability become a concern only when they become independent,60 or well before then?61 These and related questions will gain increasing rele

vance if more of the region's judiciaries follow in their Brazilian, Colombian, and Costa Rican counterparts' foot steps in building judicial power. Consequently, the con struction of judicial power and the interplay between judicial independence, power, and accountability are ques tions ripe for further examination in Latin America.

Exercising Judicial Power in the Political Arena A third area of inquiry relates to the conditions under which courts will exercise power by challenging the other branches of government when they deem that elected leaders have overstepped their constitutional or legal bounds.62

There is overall consensus in the literature on judi cial politics in Latin America that the judiciaries in the

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countries that have been the focus of some study can be divided into discrete groups according to the frequency and degree to which their component courts assert power in the political realm. In the first group, composed of Brazil, Colombia, Costa Rica, and increasingly, Mexico, courts assert considerable power, though they play signif icantly different roles in national policy deliberations. In a second group, which includes Argentina and Chile, courts theoretically have significant formal power, but for differ ent reasons are reluctant or unable to assert it consistently. A third group includes nations in which courts rarely exer cise power and where their involvement in politics is spas modic, unpredictable, and generally of less recurrent import to policy (if not political) outcomes, such as Guatemala, Peru, and Venezuela.

The main factors used to explain the willingness of courts to challenge government power are the overall polit ical environment, and institutional factors within courts.

With regard to the first, several scholars of the Argentine high court view the uncertain political environment as a cause of strategic behavior by judges.63 Some scholars argue that judges acting under such uncertainty are less likely to vote against the government as the president's control of Congress increases.' Helmke points to both the uncer tain political environment and institutional weakness sug gesting that as incumbent executives approach the end of their terms, high court judges "who lack institutional secu rity begin facing incentives to increase their antigovern ment rulings to distance themselves from a weakening government."65 Chavez, also addressing the Argentine case, emphasizes the importance of the historical political con text, noting how similar institutional configurations may lead to the emergence of different levels of checks and balances "depending on the dispersal of power and com petitive politics."66

In contrast to the Argentine case, most research on dem ocratic Chile assigns less causal weight to the political environment, perhaps because the post-transition domi nance of the center-left Concertacidn coalition has meant little variation on that variable. The key puzzle for most researchers studying Chile is why relatively independent courts exercise power so selectively. Most scholars offer institutional and cultural explanations, rather than strate gic accounts, of judicial politics.67 Hilbink, for example, posits the important role of judicial identity in "constitut [ing] the goals that judges have, rather than simply con straining the achievement of pre-existing goals," and explains how that identity is constantly reinforced due to the Chilean judiciary's particular institutional rules and structure.68 This new institutional approach has counter parts in Mexico and Brazil, where research has empha sized how characteristics of judicial institutions affect standard choice situations, constrain political and judicial actors' strategies, and limit (or empower) political actors' ability to bring challenges against government.69

A very different factor has been used in the Mexican case to explain courts' willingness and ability to challenge the actions and policies of the elected branches: the exis tence of "basic social support structures."70 The general argument, which has also been raised in the Argentine case,71 is that courts may feel empowered to challenge elected leaders in high-stakes cases (even when facing oppo sition from a hostile executive branch) if sufficient societal support exists for a challenging decision. Staton also high lights the importance of societal support in the Mexican case, and its relevance to judges seeking to build institu tional legitimacy.72 He suggests that public support is an important factor in justices' strategic calculations about the cases on which they will challenge the elected branches (greater potential support for a challenging decision is equated with a decreased likelihood of subsequent attack by the elected branches).

Further examination of these hypotheses and the con ditions under which courts exercise power seems merited. In so doing, it might be salutary to move toward testing hypotheses that have been advanced to explain judicial behavior in other parts of the world. For instance, each of the three main approaches to this question in the U.S. literature-the attitudinal model, strategic accounts, and new institutional approaches-has explanatory potential in the region. While the attitudinal model has caught on slowly among scholars of Latin American courts, there are some efforts in that direction: Helmke and Sanders, for instance, have examined the "goals" of judges, developing a game-theoretic model that links judicial behavior (includ ing challenging elected leaders) to those goals, and iden tifying four "ideal types" of judges: loyalists, policy seekers, institutionalists, and careerists.73 Since we cannot assume that Latin American judges and justices' ideologies are not important to their decision making, further analysis of judicial attitudes, especially in countries where there is greater institutional stability, seems warranted.

Moreover, as noted above, strategic accounts that ana lyze the ongoing game among the branches of govern

ment are relatively new and few, but show promise, as in Iaryczower's depiction of "strategic compliance" and Helmke's description of "strategic defection" in Argenti na.74 In fact, many political settings in Latin America exhibit the uncertainty that is thought to lead to strategic judicial behavior, for instance, suggesting that this approach to judicial decision-making and the exertion of judicial power might have significant explanatory power in the region.

Finally, the new institutional vein of the U.S. literature increasingly takes into account the effect of variables inter nal to judicial institutions, ranging from legal culture to caseload management. The new institutional view of courts seems extremely pertinent to judiciaries in Latin America, where factors such as a lifetime judicial career and the formalism of the legal system not only constrain judges'



options but may also be constitutive of their normative preferences in cases regarding public policy. Miller, for example, suggests that the way in which a "sociology of judicial review" develops and evolves in a polity can affect courts' ability to constrain the executive.75 Of course, we are not suggesting that the U.S. and

Latin American contexts are so similar that theories that have proven to have merit in the former would naturally apply in the latter. Nor are we suggesting that the litera ture on U.S. courts is the only possible source of new hypotheses to test regarding decision making on the region's courts. Our main point is that the field of comparative judicial politics, with one foot planted in public law and the other in comparative politics, might well benefit from greater cross-regional fertilization.

The Exercise ofJudicial Power in Different Arenas A fourth theme questions the exercise of judicial power beyond the political realm, researching the uneven exer cise of power by courts across different arenas of public life and in regard to different types of cases. Discussing the Mexican case, Magaloni notes the incon

gruity between the increasingly effective checks that courts have placed on the executive branch since the mid-1990s, and the inability of the political system to successfully police widespread threats to individual rights.76 This dis crepancy between what she refers to as the Madisonian and Hobbesian dimensions of power has been examined in the Argentine and, again, Mexican contexts by Dom ingo, who questions the inability of courts to provide any

meaningful protection against encroachments on individ ual rights by members of the state or third parties, even as they have managed to check executives (albeit inconsis tently).77 In a related vein, Couso argues that Chilean courts circumscribed their decision making (i.e., tem pered their own power) in the constitutional realm so as to preserve their power to freely decide less contentious, quotidian struggles in the legal realm.78

A second branch of research on this theme is exempli fied by Rodriguez et al., who question the "selective way" in which the Colombian judiciary functions, given over to commercial and financial interests and primarily absorbed by procedural, low-salience issues.79 This view echoes Mirow's history of Spanish American law, with its emphasis on the notion that despite "wide swings in political stability, and . . . even in near crisis, the sectors dependent on private law ... have been able to function with little disturbance."80

The study of divergent patterns of judicial per formance-that is, of why judiciaries rapidly absorb and process cases regarding certain issues while deflecting or delaying resolution of cases involving other issues-is clearly inchoate. Further within-country comparative analysis of the uneven nature of court performance, which gets to the

heart of questions of judicial power and judicial politics in the region, is clearly needed.

Judicial Dynamics and Democracy A final-and perhaps more tacit than explicit-debate in the literature regards the relationship between judicial inde pendence and judicial power, on the one hand, and regime dynamics on the other. Much of the work surveyed in this article either implic

itly or explicitly holds the normative assumption that, as Gloppen et al. note, "courts are important for the working and consolidation of democratic regimes."'81 Yet analysts have different viewpoints regarding how, exactly, courts affect regime dynamics. Some analysts are absolutely sanguine about courts' effects on democracy. Farer, for example, argues that law (and, presumably, courts) may contribute to "deepening [the] roots and enhancing [the] democratic quality of elected governments."82 This belief is also reflected in much of the comparative politics liter ature on the transition and consolidation of democracy in Latin America,83 and indeed, the potential positive effects of courts on democracy and on the legitimacy of the deci sions taken by democratic governments continue to be a key motivation for research on courts in the region.

Others implicitly suggest that this normative bias needs to be critically appraised. One group, for example, won ders whether courts' new-found independence can some times be prejudicial, leading to unpredictable effects on executive policymaking84 or democracy.85 Others see cause for celebration as well as concern. Perez Perdomo describes how the very same Venezuelan high court justices kept political change within democratic limits at the end of the 1990s but then acted to block political opposition in the next decade.86 And Faundez draws on the Colombian experience to argue that while legal reform is not an "abso lutely futile path towards democratization," it is undoubt edly an uncertain one.87 A final group of scholars is skeptical about the impact

courts might have on many aspects of democracy. Lar kins, for example, analyzes the strategies that Argentine President Menem (1989-1999) used to reconfigure exec utive-judicial relations in his favor.88 Taylor questions whether longstanding forms of corporatism are perpetu ated by the institutional rules governing constitutional review in Brazil.89 And other authors wonder whether our hopes regarding courts' potential contribution to democ racy are simply misplaced, especially given the counter majoritarian nature of judicial review.90

These contradictory findings regarding the links between courts and democracy no doubt reflect authors' normative biases, as well as empirical variation in Latin America. Yet we suggest that perhaps the most important source of the uncertainty regarding courts' impacts on political regimes and simultaneously the main reason why the issue has not

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generated a more heated debate-is the fact that the links between (1) judicial independence, (2) judicial power, and (3) democracy, while a backdrop to many inquiries, are rarely an explicit focus of research. In Latin America as elsewhere, we urgently need to clearly conceptualize and operationalize these three concepts, develop testable hypotheses regarding the relationships among them, and empirically explore those propositions.91

In sum, research on judicial politics in Latin America has produced a range of intriguing findings. Yet theoreti cal debate remains embryonic. We suggest four factors that may have hampered the development of debate. First, scholars of judicial politics in the region often fail to acknowledge and cite related work, especially when that work concerns different nations in the region. Second, scholars are hesitant to employ frameworks used by those who study other regions in the world, despite the wealth of hypotheses and insights the broader judicial politics literature has to offer. While the fact that Latin America follows the civil rather than common law tradition means that theories developed to explain judicial phenomena in other regions might need to be modified in order to account for outcomes in the Latin American context, this should not prevent us from adopting, adapting, and exploring the utility of those explanations. Third, the dearth of explic itly comparative research by scholars of Latin America (be it cross-national, or subnational comparison across space, time, issue areas, or judicial levels to name just a few pos sibilities) diminishes the basis for debate and compro mises our ability to adjudicate among the competing explanations for key phenomena of judicial politics. A final reason for the lack of more vibrant theoretical debate may be the fact that we have yet to complete important pre-requisites for such debate, achieving clear definitions and developing workable operationalizations for the con cepts that form the building blocks of our theories. The next section examines this issue.

Conceptual Debates and Challenges Three main conceptual problems plague studies of judi cial politics in Latin America. First, many authors fail to define the key terms on which their studies rely. Second, when authors do define their terms, they infrequently acknowledge competing definitions or reconcile their con ceptualizations with those previous definitions, resulting in the inconsistent use of concepts. Finally, scholars' oper ationalizations of key terms do not always faithfully reflect their conceptualizations, further muddying the analytic waters.

In this section, we identify three central concepts in the literature on judicial politics in Latin America (judicial ization, judicial independence, and judicial power), and outline the debates that surround them-acknowledging that those debates remain incomplete in some cases. We

also briefly mention three additional concepts: the rule of law, politicization (of the judiciary), and judicial account ability. While space does not allow us to develop a discus sion of this second group of concepts here, we point out a few of the challenges they pose for the field of judicial politics, both in Latin America and beyond. Our aims in this section are to show how the conceptualization chal lenges mentioned above are reflected in the study of judi cial politics in Latin America, and to offer a foundation that can be used to begin to build toward greater concep tual awareness.

Central Conceptual Debates

Judicialization. Of the terms reviewed here, judicializa tion is perhaps the one on which there is the greatest degree of conceptual consensus. Most of the authors in the surveyed literature who define the term start from the essential definition offered by Vallinder. Vallinder suggests that judicialization involves the infusion of courts into political arenas, and the adoption of court-like or legalis tic decision-making processes in non-judicial settings.92 Nonetheless, most scholars of judicial politics in Latin America, whose essential interest is in courts, define judi cialization as just the first of Vallinder's two dimensions.

Some scholars, however, depart from that consensus. A few adopt narrower definitions, equating judicialization with judicial power,93 or operationalizing the term as some thing akin to judicial activism.94 Others adopt broader definitions. Domingo, for example, understands judicial ization as:

first, the process by which there is an increase in the impact of judicial decisions upon political and social processes. Sec ond.... the process by which political conflict is increasingly resolved at the level of the courts. Third .... [it] reflects the degree to which regime legitimacy is increasingly constructed upon the public perception of the state's capacity and credibility in terms of delivering on rule of law, and rights protection. Finally, it refers to the growing trend ... to use law and legal mecha nisms to mobilize around specific policies, social and economic interests and demands.95

Despite the relative consensus regarding the ubiquity of the phenomenon (if not the breadth of the term's mean ing), the judicialization dynamics highlighted by scholars of Latin America contrast in interesting ways with the generalizations regarding the causes and consequences high lighted by Tate and Vallinder, for instance. To offer just two examples, where Tate and Vallinder see the spread of democracy as a cause of judicialization,96 Sieder et al. see judicialization as driven by the "very weaknesses of con temporary democracy in Latin America."97 And while Tate and Vallinder seem to assume a kind of structural bias in favor of judicialization, portraying judges as unwitting victims of expanding and politically explosive caseloads, some Latin American scholars question this view. Perez



Perdomo, for instance, wonders whether judicialization is the result of courts' voluntary assumption of a more active role, or whether in fact political actors invite judicial interventions.98 Debates about variation in judicialization are central to

the evolution of the judicial politics literature. It seems to us, then, that the sensible course is to stick as closely as possible to Vallinder's simple conceptual formulation, noted above, in the interest of enhancing the probability and tractability of comparative work across and within Latin

American countries, as well as among different regions of the world.

Judicial independence. The literature on judicial politics is replete with discussions and analyses of judicial inde pendence, likely the trickiest of the terms explored here. A number of simple definitions exist, exemplified by laryc zower et al.: "the extent to which justices can reflect their preferences in their decisions without facing retaliation measures."99 Such simple definitions, however, leave implicit one important factor that should be more explic itly recognized: the law. Judicial independence does not mean complete freedom to decide cases; it is the freedom to decide cases within the constraints imposed by the court's jurisdiction, by existing law, and in light of the merit of the case at hand.100 As Miller suggests and many agree, one fundamental

challenge in conceptualizing judicial independence is iden tifying "from whom" courts could or should be indepen dent.101 Rios-Figueroa expands this point, arguing that two clear distinctions are apparent in the discussion of independence: judicial "independence to" take decisions (for example, against the government in the case of an unconstitutional act), and judicial "independence from" other political actors, both in terms of the legal provisions that establish the relation between judges and the other branches of government, and whether politicians act in accordance with those legal provisions.102

But what does independence entail in practice? There is widespread agreement on three dimensions of independence:

1. Autonomy of the judiciary from other branches of government, referred to alternately as "political auton omy,"

103 "autonomy," 104 or "political indepen

dence."' 05 This dimension includes the ability to take decisions free of pressure from the elected branches. Obviously, a court's degree of autonomy may be influenced by its institutional stability, and by rules regarding appointments, tenure, salary, and court size.106

2. Independence of a court from the parties to a case,107 sometimes referred to as "judicial impartiality."'108 Brinks, for example, invokes Shapiro's model of tri adic dispute resolution, noting that judges must be

neither (1) identified with, nor (2) unilaterally influ enced by anyone with an interest in the outcome of the dispute. In other words, judges must have inde pendence from the parties to a suit on two dimen sions: their preferences and their decisions.109

3. Independence of lower court judges from their supe riors in the judicial hierarchy-that is, "internal independence."" 0 This dimension of judicial inde pendence obviously has considerable bearing on the efficiency and uniformity of a court system's influ ence on policy outcomes. Other things equal, a court system such as Chile's, with low internal inde pendence, can be expected to perform more uni formly and efficiently than a court system with high internal independence, such as Brazil's.

There are many difficulties associated with operation alizing judicial independence. Some work seeks to mea sure independence by evaluating the frequency with which courts rule against the government."' Nonetheless, Jary czower et al. warn that "judicial independence cannot be measured simply by considering judicial reversals of gov ernmental acts," 112 and we agree: interpreting rulings that seek to place limits on the exercise of government power as evidence of judicial independence can be misleading. Moreover, doing so belies scholars' tacit assumption that courts should rule against the government-an assump tion that ignores four crucial political realities.

First, it is undeniably the case that governments often act constitutionally (implying that judicial endorsement of their actions cannot be equated with either deference or sub servience). Further, opposition political forces frequently use the judiciary to challenge perfectly legal and constitu tional governmental policies as an extension of their polit ical strategies elsewhere in the political system.'113 Third, even courts widely considered to be independent more fre quently than not rule in favor of the government. Finally, dependent courts are perfectly capable of selectively chal lenging governments: for instance, case selection mecha nisms (especially in high courts) may permit judges to issue challenging rulings in less highly charged cases that fall within the "tolerance interval" of the executive and legislative branches,"14 while avoiding more controversial cases.'15 Thus even when courts do challenge the elected branches, the range of cases on which they will do so may be circum scribed by the preferences of one of those branches, imply ing that they are not, in fact, independent." 6 While we endorse the three-dimensional definition of

judicial independence outlined above, we acknowledge that it, too, suffers from serious operationalization challenges.

An initial step toward operationalizing the first dimension would be to think about potential empirical indicators of pressure by the elected branches. Prior to a particular judicial decision, one might seek evidence of visits to jus tices from executive branch personnel (often captured in



Articles I Doing Courts JUstice?

the media); following a certain ruling, one might try to identify acts of retribution (including the nomination of new judges, changes in courts' administrative or budget ary conditions, or attacks in the media) and other acts that constitute a significant rebuke to the courts (an over ruling constitutional amendment, for example).' 17 In addi tion to the "extra-legal" resistance and retaliation that are commonplace in some Latin American contexts, any of these actions (many of which can be perfectly legal and constitutional) could have significant repercussions for judi cial independence.

Judicial power. The term "judicial power" is used far less frequently in the literature on judicial politics in Latin America than is "judicial independence," and few analyses focus explicitly on the power of courts. 18 None theless, judicial power is implicit in much of the writing on judicial politics: it is implied in notions of horizontal accountability or political accountability (without power, even the most independent court acting in the most judi cialized context will fail in its efforts to curb over reaching executives); it is implicit in the notions of judicial impact or judicial policymaking (judicial power is a pre requisite for both); and it is obviously highly relevant to any research on the effects of courts on regime dynamics. Further, the elements that we suggest comprise judicial power are referenced in practically every study consid ered here.

Culling ideas from a range of work (and guided in part by the discussions of judicial assertiveness and authority in Kapiszewski),'19 one useful way to conceptualize judi cial power might be to understand it as comprisingpoten tial power and active power. Potential power might be composed of jurisdiction and discretion, while assertive ness and authoritativeness might constitute active power.

Jurisdiction would refer to "the range of subject matter upon which the courts may rule."'20 While few scholars include this attribute in their conceptualizations of judi cial power, it seems common sense to do so. After all, courts are not necessarily able to rule in all policy arenas: constitutional stipulations may prevent them from exer cising jurisdiction on, say, political rights. And, all else equal, it seems straightforward that a court that can only rule on a narrow range of topics has less potential power than one with broad jurisdiction. The second and related dimension of potential power

is discretion. Any court's decision-making latitude is con strained both by legal-institutional rules, and by political calculations and context. As to the first set of constraints, as Gargarella notes, laws, constitutional stipulations, judi cial rules, previous jurisprudence, and existing doctrine all place limits on courts' freedom of decision.121 In terms of the second group of constraints, Taylor, as well as Wilson and Rodriguez Cordero point out that judges' ability to choose their own battles is compromised when

they must issue rulings on conflicts into which they are unwillingly pulled by political actors taking advantage of judicial "veto points" 122 or "legal opportunity struc tures. 123 It would thus seem that judges' discretion is limited from many directions. Yet in Latin America's weakly institutionalized contexts, room for innovation often exists. For instance, while judges may not be able to create new law out of whole doth, they can often exploit ambiguities in the legal-institutional context to defensively manage their relationship with the elected branches.124 And as Kapiszewski (2007) documents, both the Argentine and Brazilian Supreme Courts take full advantage of the fact that they have sole control over the timing of their decisions to "choose the political moment" at which to hand down controversial rulings. In short, courts facing fewer or ambiguously defined legal institutional and political constraints have more discre tion, and thus, greater potential power.

Judicial assertiveness is at the heart of active judicial power. An assertive court is one that challenges powerful actors.'25 Here we again emphasize a key point made ear lier: while many studies of judicial politics in Latin Amer ica have interpreted judicial challenges to powerful actors (in particular, the executive branch) as an indicator of judicial independence, we propose that it is more accurate to consider such challenges an indicator of judicial assert iveness. Understood as such, judicial assertiveness and the factors that guide courts' selective assertion of power (which may vary across countries, courts, time, and types of case, among other axes), has been a major objective of the research on judicial politics in Latin America.

The final dimension of judicial power, authoritative ness, refers to the extent to which a court's decisions are regarded as legally binding and, in practice, to the idea of compliance with judicial decisions by losing parties. Draw ing on the Mexican case, Staton has taken a substantively and methodologically admirable first step in the examina tion of compliance; he argues that courts sometimes engage in "strategic public relations"-that is, make public their opposition to government policies in a (not always suc cessful) attempt to increase the likelihood of government compliance with a judicial decision against those poli cies.126 Gloppen et al. (2004) approach the issue from the perspective of accountability, asking how well courts ensure transparency, oblige answerability by public officials and enforce controllability on governments overstepping their bounds. We think further study of compliance should be a key objective as the research program on judicial politics in Latin America moves forward.

Related Conceptual Challenges Three other concepts that are fundamental to the com parative judicial politics enterprise are rule of law, politi cization of the judiciary, and accountability. Although we



do not have space to adequately address these important concepts in all their complexity, we briefly lay out some central concerns in hopes that future judicial politics stud ies will work to clarify conceptualizations of these impor tant phenomena.

Rule of law. Among the many concepts discussed in the surveyed literature, one of the most widely used and least well defined and operationalized is the "rule of law." Rather than entering the conceptual fray, we will simply express two concerns. First, efforts to define the term both in the surveyed literature and in the broader field have found little common ground-existing definitions of the con cept vary considerably.127 Our second concern centers on operationalization: in one sense, the rule of law represents an important conceptual shorthand for adherence to the law as a matter of social practice. Yet as soon as the con ceptual rubber hits the empirical road, the rule of law defined as such becomes inherently immeasurable, subjec tive, and subject to categorical rejection-that is-we are immediately paralyzed by a significant "data problem." Neither of these challenges justifies discarding the concept altogether; in fact, we hope both will serve as motivation for researchers to work toward more mutually informed conceptualization.

Politicization of thejudiciary. Another term that is often used but seldom clearly conceptualized in the literature is the "politicization" of the judiciary. The term is generally employed only when authors are arguing that the phe nomenon inevitably precedes or follows the judicializa tion of politics, but scholars rarely define or discuss politicization as thoroughly as they analyze judicializa tion.128 Two possible meanings are the importance of political parties or partisan ideology to judicial appoint ments or promotions, and the degree to which individ ual judges' decisions align with their political party or track shifts in partisan dominance in government (i.e., are non-law-driven). Others use the term to refer to the increasing focus on judicial decisions in debates in the broader body politic. One way or the other, the concept's connotation is negative in much of the work surveyed here.129 Given that courts appear to be assuming a more active role in politics in a number of Latin American countries, understanding how politics affects courts and their decisions-and thus understanding what we mean by and how we measure the "politicization" of the judiciary-will likely be increasingly important.

Accountability. Accountability is a conceptual upstart. Its increasing use in discussions of judicial politics in Latin America has corresponded roughly with the publication by Guillermo O'Donnell of various essays on the subject, and has been cemented by its inclusion in the title of three

edited volumes on the rule of law in the region.130 Yet as the editors of one of these volumes notes, "the meaning of 'accountability' is about as muddled as concepts get in the social sciences. "131 This confusion is due in part to the fact that "accountability" has various potential objectives (e.g., probity, policy, performance) and may involve myr iad potential actors (e.g., elected leaders, prosecutors, media, judges, oversight agencies, publics).

For instance, scholars use the term in discussing the degree to which courts (and oversight agencies) engage in routinized control of elected officials' actions such that they are "answerable" for their behavior.132 Yet the term is also used to refer to judicial accountability, or (as noted earlier) the old dilemma of who shall guard the guard ians.133 Conceptualized as such, discussions of account ability immediately intersect with analyses of judicial independence: does judicial independence require account ability to some greater authority (be it to an oversight body such as a judicial council or to some amorphous notion such as received jurisprudential tradition), or might such accountability in fact ultimately compromise judi cial independence? The central dilemma that scholars must address, then, is how to delimit accountability: account ability of whom, to which actors or ideals, and to what end?

This necessarily partial review of the central concepts and conceptual debates in the literature on judicial poli tics in Latin America sends a critical message: greater atten tion must be paid to the definition and use of key terms.

We do not presume that the discussions above will con stitute the final word on any of the concepts mentioned.

We do, however, hope that recognition of the conceptual limitations and contributions of past work will enable the field to begin to develop a dialogue about terms and con cepts that takes into account existing definitions, thus pro viding a common starting point for theory-building and empirical testing. To be clear, we are not endorsing com plete conceptual homogeneity. If scholars prefer more nuanced or inclusive definitions of fundamental concepts than those used in related work, we simply suggest that they indicate how their definitions relate to those pro posed by other scholars, and offer compelling reasons for their deviation from those definitions. We believe such careful use of concepts will facilitate dialogue among schol ars, and help the judicial politics research program move forward as a coherent whole.

Research Methods In this section, we critique what we see as the insuffi ciently self-conscious use of research methods in the study of judicial politics in Latin America. We also suggest how the failure of the field as an explicitly comparative endeavor may be preventing it from realizing its significant intellec tual potential.




Data Colection The types of data and evidence presented in the work we surveyed are divided between qualitative and quantitative. On the qualitative front, the written decisions of courts are, perhaps, the most-often used type of data. Comple mentary qualitative sources include media accounts;134 primary documents available in national archives;135 inter view data;136 and data gathered through non-participant observation.137 With regard to quantitative data, the range includes

surveys of judges,138 legal experts, 39 and broader pub

lics;140 data on law courses and judicial salaries;141 and data on the number of courts and the change in the dis tribution of cases among differential judicial instances.'42 Other researchers created their own data and databases: measures of institutional evolution; 143 cross-national mea sures of constitutions;144 measures of judicial opinions and the votes of individual justices on particular cases; 145 and measures based on systematic content analysis of inter view transcripts.146

Unfortunately, the studies listed above constitute a minority of the works surveyed. While many other authors probably carried out field research and likely used various data sources in their analyses (beyond judicial decisions), a substantial proportion of the studies reviewed here are narrative historical accounts that make little reference to the specific data that support the analysis, or explain how those data were collected. A second concern regards case selection. Most of the

works surveyed here failed to report the technique employed to select the judicial decisions on which the analysis was based. This is dangerous in a number of ways. First, it means scholars could in theory bias their samples toward cases that support their arguments. Also, unless rigorous techniques are employed, scholars can tend to re-select and re-analyze the cases that are most familiar from pre vious research. Such cases and decisions may or may not be representative of the docket and rulings of the courts under study, and their re-selection may lead to the recycling of erroneous condusions about how courts behave. We advocate that scholars employ systematic case-selection techniques-and that they include in their analyses a dear description and justification of that technique as well as a general description of the resulting universe of cases, so readers know whether the scholar examined, for instance, only "dramatic" cases, all cases in which a decision was rendered, all cases in the universe of a particular legal instrument, all of the cases on a court's docket, etc.

Analytic Methods A number of analytic methods could potentially be used to study judicial politics. Scholars might engage in descrip tive or explanatory work, and in either realm, might carry out large-n research (which tends tO lend itself to quan

titative analytic strategies), or small-n or case study work (to which they would be more likely apply qualitative analytic techniques).147 In the explanatory realm, schol ars might approach their analytic task deductively or inductively. The bulk of the research surveyed here falls into the

descriptive camp, providing in-depth reports of courts' involvement in judicial politics,148 or alternately, describ ing courts' historical evolution over a certain period.149 The legal case reviews in our survey, as well as more socio legal analysis150 also fall in this descriptive camp, as do

many of the contributions to the edited volumes on the region. As their categorization as "descriptive" suggests, these works are generally not intended to test hypotheses, but rather to depict the current state of affairs in a given country, document the presence of judicial politics or judi cialization, build the concepts that form the basis of our inquiries, and provide close analysis of particular judicial features. These are obviously all worthy goals. With respect to the subset of work that is explanatory

in nature, few pieces make effective use of the many excel lent research tools that are available to carry out qualita tive causal analysis, or the equally useful set of quantitative analytic techniques. A few exceptions thus stand out. With regard to qualitative methods, Larkins utilizes a critical juncture/path-dependence framework in his longitudinal examination of the Argentine and Peruvian judiciaries,15' and various studies utilize process tracing to help explain court-executive relations.'52 Another small subset of the explanatory work uses quantitative methods to draw causal inferences, including statistical models.153 And a final tiny subset uses game theoretic methods to explain judicial phenomena.'54

Beyond these few works, however, most scholars simply do not report using rigorous research methods of any type. Given that the nuanced and causally complex nature of judicial politics would seem to lend itself naturally to the use of rigorous qualitative analytic techniques such as con gruence testing, counterfactual analysis, necessary/sufficient conditions frameworks, Ragin's "qualitative comparative analysis" (QCA), and fuzzy-set analysis, to name just a few, the under-use of such tools is disappointing and unfor tunate. Further, both Staton's and Helmke's inquiries illus trate the validity and utility of game theoretic methods in the study of judicial politics in Latin America.

In light of the field's relative youth, it is perhaps no surprise that the literature on courts in Latin America is predominantly descriptive; such work serves as the foun dation of any field. As the research program advances, the more frequent use of qualitative or quantitative methods to draw inferences and identify patterns in judicial behav ior would further improve our descriptive base. We also feel it would be advantageous to slide the research program's center of gravity closer to the explanatory end of the spec trum, applying the rich variety of methods mentioned



here to understanding the causes and consequences of cru cial judicial processes. Moving in that direction could even tually lead us to broader theoretical conclusions that would be testable beyond the Latin American countries in which they were generated, including in contexts outside the region.

Methods of Comparison Our survey suggests an important imbalance in the Latin American judicial politics research program: while an incredibly rich body of case studies has been produced, the field has been less effective in undertaking compara tive inquiry within or across countries. Regarding within-country comparison, the surveyed lit

erature does include a number of pieces of exemplary research across various periods within the same nation.155 However, as noted earlier, few studies compare different subnational regions of particular countries-for instance, contrasting the decision-making of different state supreme courts. Further, few studies compare judicial practices, judi cial rulings or, more generally, how courts function at different levels of the judiciary in a particular country,156 despite the fact that federal systems such as Argentina, Brazil, and Mexico would lend themselves to such analy sis. While some scholars have begun to compare judicial decision-making across varying arenas of public life (refer to our discussion of the exercise of judicial power in dif ferent areas), little work has compared judicial decision making across different policy areas in a certain polity,157 or across different areas of law (public and private law, for example). In short, with such a strong descriptive base laid, there is enormous potential for subnational compar ative work.

Further, beyond studies referred to earlier that attempt to categorize judiciaries along different institutional fea tures, there is little rigorous cross-national inquiry, for example, of the policy effects of different judicial frame works, histories, or cultures. While several unpublished dissertations 158 and a handful of articles 159 offer explicitly cross-national analyses, they are in the minority; even book length compilations of national case studies-a format that should facilitate comparative inquiry-do not neces sarily draw out the cross-national comparisons implicit in the analyses that constitute them. To some degree, the lack of cross-national analysis is understandable (and inher ently defensible). Engaging in cross-national comparison can involve serious methodological challenges: collecting good data in a consistent manner in more than one coun try can be quite difficult, as can drawing anything more than tentative lessons from paired cases with fewer obser vations than explanatory variables.160 Yet on the whole, we believe that our collective failure to produce rigorous cross-national analysis represents a missed opportunity. Given the broad similarities that characterize the region's

judicial systems, and the very different forms that judicial politics takes, Latin America seems to represent an ideal laboratory for analyses that privilege breadth over depth.

Moreover, with two notable exceptions,16" few authors go beyond Latin America to draw comparative lessons, despite the fact that existing research on Spain, Portugal, Korea, India, South Africa, and a number of other cases offers the potential for highly revealing cross-regional comparative analysis.

In short, the abundance of existing single-country studies-the majority of which are careful and detailed offers a rich opportunity for meta-synthesis and compar ison that could likely yield important returns for the broader field of judicial politics. Extending Martin Shapiro's plea that scholars study any law but constitutional law, any court but the Supreme Court, and any country but the United States, we encourage further comparative examina tion across types of law, courts, and countries.'62

Conclusion Over its barely two decades of development, the field of judicial politics in Latin America has grown quickly into a eclectic and exciting area of inquiry. Our survey of the literature revealed three major lines of study around which the most important theoretical debates revolve. First, schol ars have explored the relations between the judicial and elected branches of government, and in particular the con ditions under which Latin American courts are more apt to check (or more likely to defer to) elected leaders. In a region prone to hyper-presidentialism, this is obviously an important concern. A second line of inquiry relates to the effects courts have on the policy process and policy out comes. Given the crucial importance ascribed to the waves of economic and social policy reforms in the region over the past quarter century, scholars' interest in courts' involve ment in policymaking also seems quite appropriate. Finally, a third line of study includes classificatory and descriptive analyses of courts and legal institutions. The thick descrip tion these works generate forms the bedrock of our knowledge.

Our survey also revealed a great deal about the theoret ical orientation of the field. Scholars of Latin America have earned a reputation for being quite good at produc ing local level knowledge, as well as carrying out strong "mid-level, theoretically informed empirical study of one or more countries." 163 To what extent is that true of the study of judicial politics in Latin America? In a sense, this is the wrong place to answer that question, since our sur vey of the literature-by design-excludes work that is solely theoretical. But it is fairly evident that while work on judicial politics in Latin America has addressed some important theoretical debates-such as those regarding the activation of judicial actors, the delegation and con struction of judicial power and its exercise in the political




realm, as well as the relationship between judicial inde pendence and power on the one hand, and regime dynam ics on the other-the literature on judicial politics in Latin

America is not at the leading edge of theory-building. That privilege belongs to scholars of U.S. and European judicial politics. Why might this be the case? One obvious answer is time: the field of Latin Ameri

can judicial politics has existed for less than two decades. Yet we believe at least three other characteristics have inhib ited the field's progress: our inattention to conceptualiza tion, our lack of methodological rigor, and our weak emphasis on comparative inquiry. With regard to the first, our review of the various understandings scholars hold of several of the fundamental concepts in the field suggests that students of judicial politics in Latin America have not placed nearly enough emphasis on developing and employ ing clear and operationalizable definitions for key terms, or on taking into account existing conceptual contribu tions (whether to accept or reject them). We suggest that scholars draw on previous work when defining key con cepts rather than constantly reinventing the wheel. More "self-aware" conceptualization would doubdess aid the field of judicial politics in generating more broadly applicable theoretical contributions.

Second, perhaps because scholars have been racing to catalogue the emergence of judicial politics in the region and analyze its dynamics, most analysts have carried out their inquiries without using rigorous methods to select cases, gather evidence, or draw inferences. Without greater methodological care the field will have enormous diffi culty moving forward as a scholarly enterprise.

A final issue that may have hindered further theory building is the absence of deeper cross-national and sub national comparative inquiry. With regard to the former, while the field has produced a host of wonderful country case studies, and even a handful of cross-national studies, little has been done to integrate them and draw out their broader theoretical lessons. Latin America is a region of countries with historical and linguistic similarities, char acteristics that facilitate cross-national examination, and we echo Epstein in urging scholars to "grasp the compar ative advantage."'64 Moreover, as the discussions above suggested, subnational comparative analysis can take myr iad forms, and engaging in that sort of study allows ana lysts to reap the benefits of comparative inquiry without facing the methodological challenges inherent in cross national analysis. We firmly believe that if scholars of Latin American judicial politics engage in more comparative inquiry of either sort, they will likely produce new find ings and insights with the potential to influence and inform debates about courts in other regions of the world.

Related to the issue of theory-building-and despite the intellectual advances the field has made and the fasci nating findings it has generated-we believe that a num ber of judicial politics' most interesting dynamics have yet

to be the focus of sustained inquiry. In the remainder of this conclusion, we highlight some prime candidates for future examination. We first mention some of the actors, courts, and legal institutions that we might bring into future study. We then advocate an expanded focus on the aftermath of judicial rulings. Finally, we endorse more work identifying and analyzing the connections between courts and regime dynamics.

Actors, Courts, and Legal Institutions There has been little analysis (in English) of Latin Amer ican judicial elites.165 For the most part, we know little about the backgrounds, ideologies, or preferences of the region's judges and justices, and have barely begun to explore the politicization of the region's judiciaries or the implications of that dynamic for those who populate Latin

American courts.166 Although the career paths of some Latin American judges can be longer, more bureaucratic, and to a certain degree more insulated than those of their North American colleagues, this is not always the case, and even where it is, justices' ideology, culture, and atti tudes must exert some effect on their decision-making.

Additional study of these powerful individuals might go a long way in informing our analyses of judicial politics. Scholars wishing to take this approach could certainly find strong theoretical foundations in the judicial politics lit erature from outside the region.

Yet we also propose a sharper focus on the involve ment in and importance to judicial politics of actors beyond judges. Here we may be jumping on a moving train given recent publications in this spirit. For instance, Perez Perdomo has authored a book examining Latin American lawyers. Also, an edited volume by Halliday et al., which includes three chapters on Latin America, examines the effects on political liberalism of what they refer to as the "legal complex" (the bench, the bar, and "all other legally-trained personnel in a society who under take legal work"); while the outcome of interest is differ ent, the focus on this broader set of actors is instructive.167 Garro has taken a look at the role of the public ministry in Argentina, and the role of Brazil's quasi-independent prosecutors has sparked a burgeoning literature.168 Com parison with other prosecutorial bodies in the region might provide effective insights into choices regarding which crimes to prosecute and which policy subjects to priori tize, the effectiveness of prosecution, and the overall effect of these dynamics on judicial politics. Future work might explore the involvement of the office of the ombudsmen (often referred to as the Defensor del Pueblo), of auditors, of councils of state, and of judicial councils in judicial politics.169 Finally, in particular in Latin America where law professors often litigate, litigators often teach, and academics can be a source of authoritative doctrine, it could be informative tO consider the impacts that legal



academics (and legal education) may have on judicial politics.

On a similar note, we believe it is crucial that our analyses move beyond high courts to examine other judi cial bodies. We would highlight lower courts and elec toral courts as two particularly interesting candidates for additional study. While the interventions of high courts are doubtless important, the fact that they often transfix us can lead to insufficient attention to the "everyday" or "routine" justice carried out by lower courts, which can be more socially relevant and certainly influence judi cial politics.170 As Beer has found, for instance, local level conditions may lead to significant variance in judi cial performance across states.171 For their part, electoral courts by their very nature play at the sensitive core of the democratic process. While these courts have trig gered recent interest,172 incorporating them further into the judicial politics fold might provide useful intellectual synergies and lead to new insight into judicial politics. Our next points concern which facets of the courts

might be worthy of greater study. Few authors have closely examined the internal dynamics of the region's courts. In much of the literature, courts are typically described in the aggregate; little attention is given to how individual courts function "on the inside" or to how this and other features might differ across courts and over time. Few analyses focus on whether high court presidents are appointed or elected (and by whom) and what role they play; whether high courts orally deliberate over cases; who (if anyone) controls the docket and the timing of deci sions; and how, logistically and intellectually, courts deal with their frequently immense case loads.'73 Studying courts' internal rules and processes, examining and con trasting their formal and informal institutional rules, and exploring how, procedurally, they make decisions all seem to be endeavors that would improve our understanding of judicial efficiency in particular, and judicial behavior in general. We also advocate further study of the nature of the

relationships among different courts and different instances of the judiciary. For instance, for countries that have both a constitutional tribunal and a supreme court (e.g., Chile, Colombia, and Peru), the interactions and potential for competition between these two bodies is important to understand. Further, there is already some consensus among those who analyze judicial politics in Chile and Brazil that inter-instance relations (specifically, a highly disciplined vertical structure in Chile and a somewhat disjointed one in Brazil) are important to the shape of judicial politics in those countries. One can easily imagine that there may be considerable variation in local judges' influence on high courts as well as their susceptibility to pressures from those courts.174 Indeed, the relationships among courts at dif ferent levels of a judiciary may be greatly influenced by how strictly hierarchical the judiciary is, whether or not

lateral entry is permitted, whether judicial careers exist, and how appointment and promotion occur. Those rela tionships, in turn, may influence the full judiciary's effect on policy and political outcomes in ways that are not revealed through research that focuses on high courts alone. In short, to arrive at a clearer picture of Latin American judiciaries and judicial politics, it is crucial that we move our studies down and across the judicial ranks, that we examine courts from the inside out, and that we examine their inter-relationships.

Finally, we suggest that greater advances could be made in our understanding of judicial politics in Latin America if law itself were to become a more prominent consider ation in our analyses. We are not suggesting that political scientists become legal scholars. Rather, we simply believe that in our analyses of the judicialization of politics, of courts' increasing involvement in policy-making, and of their willingness and ability to assert power, we keep in mind that legal rules are the fundamental background for judicial behavior. Even in Latin America's least institutionalized settings, constitutions, substantive and procedural codes, laws, legal doctrines, theories of judicial interpretation, and existing jurisprudence all motivate, enable, and constrain judicial actors.175 Consequently, investigating and including such legal institutions in our examinations of judicial dynamics-even if doing so makes our explorations more time-consuming and complicated would doubtless enrich our descriptions and explanations of judicial behavior and politics.

The Aftermath ofJudicial Decisions We also suggest further exploration of the aftermath of judicial rulings. To state the idea plainly: if we care what difference courts actually make (as we assume all who study judicial politics do), we must investigate what happens after they make the crucial rulings on which our inquiries tend to focus. A first missing element is attention to whether, when, to what degree, and why those against whom courts rule comply with judicial decisions. The speed at which and degree to which executives adhere to the letter and spirit of judicial rulings that challenge their exercise of power are obviously of particular importance for studies interested in courts as potential agents of "hor izontal accountability." Without compliance, judicial rul ings matter far less. What is more, a lack of compliance

with a court's controversial and high-profile decisions may end up significantly weakening its power. As a result, judges may make strategic choices as they consider whether or not to challenge the elected branches, ponder the timing of their decisions, and mold the breadth and reach of their rulings. More generally, however, we hope the literature will

begin to examine the broader impact of judicial deci sions, and what

doing courts justice? studying judicial politics in latin america

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