JUDICIAL DECISION IN HOSTILE ENVIRONMENTS

GABRIEL PEREIRA

Congreso; Law and Inequalities: Global and Local; 2014

Law and Society

The Supreme Court of Argentina issued 11 decisions of great relevance for human rights protection between 2005 and 2010. These decisions fall within the category of structural litigation, the most activist form of human rights protection in constitutional law. Using this court and these cases, this paper aims at responding the following question: When Latin American courts are more likely to engage in the most intense forms of human rights protections? The central argument of this work is that the level of human rights protection of judges sitting in vulnerable courts is a function of their attempt to protect the institutional security of their institutions. I argue that in contexts characterised by a lack of a culture of judicial independence, by high levels of judicial delegitimisation, and a high level of public visibility of judicial affairs, judges will attempt to simultaneously construct public support and avoid political conflicts with the Government. As a result, judicial decisions are driven by judges´ calculations of both the public´s reaction and the Government´s reaction to their rulings. I claim the level of judges´ rights protection will increase when the Government´s tolerance to decisions against its preferences was is higher and the public appears to be more supportive. More precisely, I propose that attempts to attain institutional security led judges to behave strategically. On the one hand, judges seek to shape and anticipate the reaction of opinion leaders who are able to both shape mass public views on the general image of a court (diffuse support), and to influence mass public reactions to decisions over socially-sensitive rulings (specific support). On the other hand, judges calculate the government´s tolerance to decisions contrary to its own interests. They anticipate that the risk of retaliation decreases if they avoid ruling against powerful governments on issues of particular salience to the official agenda. Surely, my argument builds on the core tenets of two apparently mutually-exclusive theoretical models, the fragmentation of power and public support models. However, it seeks to overcome their limitations in explaining extant developments in Latin America. Certainly, in line with the fragmentation of power hypothesis, I propose that in protecting their courts judges calculate the power of governments to launch retaliations. However, my argument proposes that judges also take into consideration the salience of the issues at hand. Further, I also propose that the calculus of the government´s political power is not the sole factor determining judicial decision. I propose that judges in vulnerable courts also attempt to build public support. Thus, I propose a new bivariate, integrated perspective in which the two variables are (a) the Court´s standing with the public and (b) the government´s tolerance interval.