Executive Power and Judicial Instability: Testing Competing Explanations

• In Event: Re-thinking the Latin American Presidency in the 21st Century

Abstract

Under what conditions can the president manipulate the composition of the Supreme Court or Constitutional Tribunal? We explore this question using an original database of Supreme Court and Constitutional Tribunal members in 18 Latin American countries between 1904 and 2010. The database contains information for the universe of justices serving in those countries during this period: a total of 3,192 Supreme Court and 302 Constitutional Tribunal justices, equivalent to 24,763 justice-years in office. Our analysis tests four different theories of executive-judicial relations. The first one claims that judges engage in strategic retirement and therefore abandon the Court when the president belongs to the same party, allowing for the nomination of a like-minded replacement. The second one claims that presidents respect an independent judiciary as “insurance” in contexts of high electoral competition. The third one suggests that reshuffles occur when the political cost of purging the judiciary is low enough that the president is willing to attempt a takeover, yet the probability of success is low enough that judges are willing to defy the executive. The last perspective argues that purges of the judiciary are a side-effect of executive-legislative confrontation. The results of event-history models challenge some of the main assumptions underpinning those theories.

Authors

• Aníbal S Pérez-Liñán, University of Pittsburgh

• Maria Andrea Castagnola, FLACSO México