Judicial Politics in Mexico

The Supreme Court and the Transition to Democracy

Andrea Castagnola, Saul Lopez Noriega, Andrea Castagnola, Saul Lopez Noriega

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781315520599
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

After more than seventy years of uninterrupted authoritarian government headed by the Partido Revolucionario Institucional (PRI), Mexico formally began the transition to democracy in 2000. Unlike most other new democracies in Latin America, no special Constitutional Court was set up, nor was there any designated bench of the Supreme Court for constitutional adjudication. Instead, the judiciary saw its powers expand incrementally. Under this new context inevitable questions emerged: How have the justices interpreted the constitution? What is the relation of the court with the other political institutions? How much autonomy do justices display in their decisions? Has the court considered the necessary adjustments to face the challenges of democracy?

It has become essential in studying the new role of the Supreme Court to obtain a more accurate and detailed diagnosis of the performances of its justices in this new political environment. Through critical review of relevant debates and using original data sets to empirically analyze the way justices voted on the three main means of constitutional control from 2000 through 2011, leading legal scholars provide a thoughtful and much needed new interpretation of the role the judiciary plays in a country’s transition to democracy

This book is designed for graduate courses in law and courts, judicial politics, comparative judicial politics, Latin American institutions, and transitions to democracy. This book will equip scholars and students with the knowledge required to understand the importance of the independence of the judiciary in the transition to democracy.

1

The transformations of the role of the Mexican Supreme Court

Andrea Pozas-Loyo and Julio Ríos-Figueroa

I Introduction

The objective of this chapter is to give a broad but systematic introduction to the roles the Mexican Supreme Court has played in almost one hundred years of functioning, from 1917 to 2013. We aim at presenting an account that incorporates the political and the legal perspectives on the work of the court, establishing a dialogue within the current literature on this high tribunal. We hope it will be of interest to both students and specialists, and that it will contribute to building bridges among scholars who study the Mexican Supreme Court from different fields of knowledge.

The last decade has seen an important increase in the number of studies devoted to analyzing different aspects of the Mexican Supreme Court.¹ In contrast to a not very distant past, these studies come from diverse disciplines in the social sciences and not almost exclusively from legal scholarship. For starters, there is now a series of richly descriptive empirical studies that unveil important issues and processes, such as how the justices are elected and how they decide cases (Elizondo and Magaloni 2010); how many and what type of cases the Supreme Court decides either in general (Bustillos 2009) or through specific instruments of constitutional review, such as the action of constitutionality (López Ayllón and Valladares 2009) and the constitutional controversy (Hernández 2011).² These studies have provided fundamental information on the Supreme Court and have called attention to the basic data we still lack on central issues.

There is also a series of political science studies aimed at explaining the behavior of the Supreme Court Judges emphasizing the effects of different kinds of non-legal constraints on the justices’ decisions. In this vein, for instance, it has been shown that Supreme Court Judges began leveling the electoral playing field soon after the 1994 reform (e.g. Finkel 2003), which divided government in 1997 and increased the likelihood of decisions against the Partido Revolucionario Institucional (PRI) (e.g. Ríos-Figueroa 2007), and in which party turnover in executive power in 2000 also increased the likelihood of decisions of unconstitutionality (e.g. Magaloni et al. 2011). It has also been shown that since 1995 the Supreme Court has actively sought the support of public opinion in order to build its power and authority (e.g. Staton 2004, 2010). One of the central lessons of this political science scholarship is that the Supreme Court is a strategic political actor that has concentrated its efforts on arbitrating political conflicts, downplaying its role as protector of fundamental rights (e.g. Ansolabehere 2010; Helmke and Ríos-Figueroa 2011; Magaloni et al. 2011).

In part as a response to the shortcomings of political science work on the Supreme Court, and in part because of the increasing importance of the court’s jurisprudence for policies and politics, legal scholars have begun to produce systematic jurisprudential lines on specific topics. This novel work (in Mexico) has produced specialized jurisprudential knowledge in areas such as criminal due process rights (e.g. Magaloni Kerpel and Ibarra Olguín 2008); the taxing capacity of the state and the just imposition of fiscal burdens (e.g. Elizondo and Pérez de Acha 2006); federalism (e.g. Caballero 2010); separation of powers and political representation (e.g. Carbonell and Salazar Ugarte 2006; Ibarra Cárdenas 2014); the scope and limits of sexual and reproductive freedom (e.g. Madrazo and Vela 2011; Pou Giménez 2010); and freedom of speech (e.g. Cossío, Hernández, and Mejía 2014). In terms of judicial behavior, of the central lessons of these studies is that the court is building—quite slowly, and in disparate and not always consistent ways—its understanding of the basic rules of the political game, and of the effective protection of fundamental rights.³

In sum, scholarship on the Mexican Supreme Court has made considerable progress in the last two decades. However, while we now have social science and legal analyses on the court these two perspectives remain isolated; they don’t talk to each other. Because the Supreme Court is a key legal and political actor, we believe that it is much more fruitful to analyze its work from these two perspectives simultaneously. Moreover, we believe that each of these perspectives tends to embrace a misleading assumption that needs to be abandoned to account for the evolution and the determinants of judicial behavior in Mexico.

On the one hand, while most social science studies on the Supreme Court focus on the last two decades it is important to recognize that the court has been a key actor in Mexico’s political life for a long time, though its role has changed across time and across issues.⁴ Moreover, to understand the changing roles of the court it is crucial to analyze in detail its decisions on specific political problems, something that social science studies that focus on general patterns do not usually do in depth. On the other hand, contrary to what an important part of the legal scholarship implies, it is important to recognize that the decisions of the Supreme Court are often influenced by extra-legal factors and that these can be systematically accounted for. Justices are motivated both by their constitutional and by their political constraints and incentives. Because they are neither the Montesquieuan “mouths of the law,” nor purely Machiavellian power seekers, we need a theoretical framework that enables an account that combines the political and legal perspectives.

In this chapter, we use a notion of “role” that enables an analysis of judicial behavior from these two perspectives simultaneously. In turn our empirical research has a diachronic structure and focuses on a single but highly relevant area of issue that we analyze in depth. We believe this structure, which is characteristic of jurisprudential lines (López Medina 2009), is particularly fruitful in showing the interaction of political and legal aspects of judicial behavior.

Specifically, we focus on the Supreme Court’s jurisprudence from 1917 to 2013 on military autonomy, defined as the “military’s decision making authority that ranges from education to intelligence gathering to human rights” (Pion-Berlin 1992: 84). We look at cases reaching court where some aspect of the military’s decision-making authority is challenged, and then zoom in on the subset of those cases that deal with the scope of military jurisdiction.⁵ This is a relatively small but privileged window from which to observe the dual legal/political nature of the Supreme Court because it captures the legal responses that the Supreme Court has given to a highly political question, as well as the ways in which the constitutional design of judicial institutions has affected the court’s jurisprudence. Moreover, the trajectory of the Supreme Court’s jurisprudence on military autonomy and the scope of military jurisdiction broadly also reflect its jurisprudence in other areas, such as rights protection and the arbitration of political conflicts. But, of course, a more specific analysis on particular issues will show variations in the timing, type, and direction of jurisprudential trajectories.

Our account is divided into three broad periods marked by important changes in the justices’ roles that lead to three different responses to the legal question regarding military autonomy and the scope of the military jurisdiction. The three periods are:

1. From 1917 to 1940: In this period the Supreme Court Justices’ role was largely that of adjudicators, therefore, their jurisprudence regarding military jurisdiction basically applied the quite restrictive scope established in Article 13 of the Mexican Constitution.

2. From 1941 to 1997: In this period the justices’ role was that of regime supporters and their jurisprudence regarding military jurisdiction gave prevalence to an expansive Code of Military Justice over the constitution overlooking the explicit content of Article 13, and in this way protecting the interests of the military and the regime elite.

3. From 1998 to 2013: In this period the justices’ role has had important transformations enabling them to function at times as constitutional interpreters. On military jurisdiction, this role has been played inconsistently but it is possible to say that it became clearer with the jurisprudence produced from ca. 2009 onward.

Section II of the chapter is sub-divided into five parts. In the first, we briefly discuss different notions of “roles” and clarify the one we use here.⁶ We also give a broad introduction to the military–civic relations in Mexico and to the issue of military autonomy and military jurisdiction in particular over the long period analyzed in this chapter. The second, third, and fourth parts deal with each one of the three periods we have just described. In particular in each part, we first present the roles of the Supreme Court Justices in that period in order to then discuss its jurisprudence on the scope of the military jurisdiction. Section III briefly concludes.

II Roles and military jurisdiction

II.I “Role”: A definition

“Judicial roles” has been used in legal and social science studies on courts in different ways. Broadly speaking, we can identify two different conceptualizations of “judicial role.” The first one, mainly used in social science studies, refers to the court’s function or task in a particular political system or in a particular time such as a democratic transition (see Ginsburg 2012; Kapiszewski et al. 2013). Under this notion the collective agent who plays the “role” is the court. This notion is helpful to describe how the court, as an institutional agent, interacts with other institutional agents such as the executive and the legislative powers, or with other political actors such as the authoritarian and democratic forces, in a critical juncture. This notion is therefore often used as the dependent variable in studies that aim to explain why a given court played such and such a function in a certain period. While very helpful, this conceptualization is often loosely used, and not always explicitly and clearly defined.

The second notion of judicial role refers to the self-conception of individual judges’ own task, i.e. the beliefs judges have over their function. This notion is often used as an independent variable to give account of judicial decisions (e.g. Hilbink 2007). This notion can of course also be used as a dependent variable in historical studies that ask: “Why do judges conceive their function the way they do?”, or simply “How do specific justices conceive of their own task?” (Pozas-Loyo 2012b). This notion is also helpful, but it faces the challenge of capturing in a systematic way the often elusive judges’ self-conceptions.

The conceptualization of “role” we use here shares the usefulness of the other two notions, while it evades the problems we have mentioned. In particular, it has an explicit and analytically clear definition the former lacks. And, unlike the latter, the full description of roles is provided by norms (legal and political) that are known in the political context analyzed (for more details on this notion see Pozas-Loyo, 2012a).⁷ In a nutshell, a role is an abstract description of an agent’s or an object’s expected function (Zambonelli et al. 2003; see Masolo et al. 2004) due to its position in a set of relations (see Davis and Barret 2002 and Pozas-Loyo 2012a). Examples of roles in this sense are: professor, wife, and president.

Political and constitutional roles are part of a subtype of roles called “statuses.” A status is a role that carries powers, prohibitions, rights, requirements, and permissions (Knoke and Kuklinski 1982: 19). Hence, the complete description of an individual’s political or constitutional role is the set of powers, prohibitions, rights, requirements, and permissions the specific role has in that political or constitutional system (Searle 2010: 102). For instance, the constitutional role of the Supreme Court Justice in Mexico can be fully described by listing all the powers, prohibitions, rights, requirements, and permissions the Mexican Constitution grants to justices. In this way we address the concerns regarding the fuzziness of the first notion of role and the elusiveness of the second.

In order to clarify our narrative we divide the Supreme Court Justices’ roles into two parts: the constitutional role on the one hand, and the political role on the other. This analytic separation makes sense since the set of powers, prohibitions, rights, requirements, and permissions contained in the constitutional and the political norms can oppose or reinforce each other, and therefore separating them would enable us to account for the de jure/de facto interaction and its consequences for constitutional efficacy (see Pozas-Loyo 2012b).⁸

We can now provide clear definitions of constitutional and political roles:

1. A constitutional role is a status function whose complete description can be obtained in a written constitution. In the instance that concerns us here, it is the complete set of powers, prohibitions, rights, requirements, and permissions that the Mexican Constitution grants to the Supreme Court Justices.

2. A political role is the status function whose complete description can be obtained from the unwritten norms of the political system. So the powers, prohibitions, rights, requirements, and permissions present in the norms of the Mexican political system provide the full description of Supreme Court Justices’ political role.

The usefulness of these definitions is that they provide the theoretical justification for focusing on the constitutional and political powers, prohibitions, rights, requirements, and permissions to give account of the roles the Supreme Court had in the three periods we identify.

II.II Civil–military relations and military jurisdiction in Mexico

Democratic civilian governments and their armed forces clash over how to subject the military to the democratic rule of law without jeopardizing its esprit de corps and its efficacy (cf. Agüero 1995; Barany 2012; Serra 2010). In other words, the construction of a “democratic army,” an army that unconditionally supports democratic governance, involves striking a delicate balance between ensuring the loyalty of the military to the popularly elected politicians while simultaneously granting to the military sufficient autonomy and strength to successfully discharge its functions and execute its missions (Barany 2012). Conflict between civilian governments and the armed forces is thus inherent to democracy. Of course, these conflicts are more acute and more regular in countries undergoing regime transition and also where the armed forces are called upon to perform activities related to internal security, such as fighting against terrorism, drug trafficking, organized crime, and sometimes even regular street policing. As former Spanish Defense Minister puts it “striking a balance between controlling the military and maintaining discipline on the one hand, and inspiring motivation and necessary collaboration in order to construct and apply a new framework of relationships on the other, is one of the most difficult challenges in a period of consolidation of democracy” (Serra 2010: 153).

In the inherently tense relations between civilian governments and their military forces there can be a series of difficult outcomes. One extreme outcome is, to be sure, a military coup and the establishment of a military government. Another extreme outcome is a stable and workable military subordination to the civilian government. In between the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Acknowledgments
• List of contributors
• Introduction
• 1. The transformations of the role of the Mexican Supreme Court
• 2. The law as power: Strategic litigation in Mexico
• 3. Are Mexican justices true arbiters among the political elites? An empirical analysis of the court’s rulings from 2000–2011
• 4. The Supreme Court and the (no) Rights Revolution: An empirical analysis of the court’s rulings 2000–2011
• 5. Constitutional change and the Supreme Court institutional architecture: Decisional indeterminacy as an obstacle to legitimacy
• Conclusion: The challenges of courts in democratic consolidation
• Index