The Puzzling Judicial Politics of Latin America

Abstract

Two decades ago, it was common to claim that though much was understood about legislatures, presidents, and even bureaucratic agencies in comparative politics, judiciaries remained relatively understudied (e.g., Gibson et al. 1998; Epstein and Knight 2000). Fortunately, this claim can no longer be sustained, particularly in Latin America (Kapiszewski and Taylor 2008). Beginning in the mid-1990s, a wave of judicial scholarship has addressed courts across the region. Building on this literature, this chapter takes up three core questions: Why does political conflict become judicialized? Why do judges challenge or support the government? How do politicians react to the choices judges make? Each of these questions refers to an essential choke point in the legalization process, and just as critically, we argue, each is related to the other (cf. Gauri and Brinks 2008). The point of departure for our chapter lies in the following observations. Insofar as these three elements of the legalization process are interdependent, existing theories often fail to explain the particular configuration of empirical regularities that marks judicial politics in developing democracies. First, off-the-shelf strategic models wildly underpredict one of the most salient features of interbranch relations in Latin America: the sheer number of politically motivated attacks against the judiciary across the region. Second, for precisely the same reasons, standard theories tend to overpredict judicial prudence and have little to say about the multiple counterexamples of judges who engage in risky and downright bold decision making.

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