Introduction and Contribution

Democratic “consolidation,” whereby democracy is the “only game in town,” depends on the functioning of a host of political institutions. This includes free and fair elections, respect for individual rights, and an independent judiciary. Accordingly, many countries that underwent transitions to democracy in the 1990s worked to build autonomous and impartial judicial institutions. Reformers hoped that judges with the capacity to review executive and legislative action and effectively enforce their decisions would serve as bulwarks against authoritarian reversion. 

Yet the recent wave of democratic backsliding and autocratization has demonstrated the fragility of judicial institutions. In places as diverse as Hungary, Poland, Venezuela, and Turkey, elected authoritarian leaders have sought to weaken or destroy independent judiciaries, even co-opting them to further their anti-democratic agendas. Have judges become unable to counter autocrats? Answering this question is critical for the global pro-democracy movement.

In “How Latin America's Judges are Defending Democracy,” Diego A. Zambrano, Ludmilla Martins da Silva, Rolando Garcia Miron, and Santiago P. Rodríguez show how judges in Brazil, Colombia, and Mexico have made a series of innovative and forceful anti-authoritarian rulings. These outcomes are surprising in light of parallel judicial failures in Latin America and other backsliding democracies. The authors discuss six factors that help explain these outcomes: three stem from the judiciary's internal politics, and three connect to broader changes in Latin American society. Although no single factor explains all three cases, this should not detract from the broader lesson that judiciaries can serve as important pro-democracy actors. 

Three Cases of Judges Defending Democracy

Brazil: 

After the military junta fell in 1985, Brazil built strong judicial institutions, which largely remained on the political sidelines until the rise of Jair Bolsonaro in 2018. During his campaign, Bolsonaro expressed his intent to manipulate the Supreme Court’s composition, suggested he would not comply with its decisions, and marched in favor of a military takeover. Meanwhile, his supporters placed explosives near the homes of Supreme Court justices and made threats against them and their families. These developments — threatening Brazilian democracy, the separation of powers, and the personal safety of judges — put significant strain on the judiciary. 

In response, the Supreme Court took the unprecedented step of ruling that it could unilaterally open investigations into government officials. It did so in cases involving those who spread false information and made defamatory accusations against judges. During COVID-19, Bolsonaro attempted to centralize the authority to impose lockdowns, which the Supreme Court rejected as violating the constitutional separation of powers.

Brazilian democracy faced its most existential threat during and after the 2022 elections. In response to Bolsonaro and his supporters promoting conspiracy theories about election fraud, the Supreme Court issued press releases attesting to the elections’ democratic integrity. And after the infamous Brazilian coup plot, the Court investigated Bolsonaro and disqualified him from running for office.

Colombia:

Colombia’s judiciary has received global recognition for its independence, defenses of human rights, and broad domestic legitimacy. It has decriminalized abortion and euthanasia while imposing limits on executive power. In 2010, it rejected President Álvaro Uribe’s unconstitutional attempt to run for a third term in office despite Uribe’s widespread support among the public and Colombian elite. And in 2023, it upheld its power to suspend evidently unconstitutional acts or those posing a “clear and present danger” to the constitutional order. These rulings demonstrate how Colombian judges have been willing to defend constitutional democracy, even when doing so requires confronting powerful executives.

Mexico:

Much like in Brazil under Bolsonaro, Mexico’s judiciary faced a critical test with the rise of President Andrés Manuel López Obrador (AMLO) in 2018. AMLO was extremely popular, winning over 50% of the vote, while his Morena party took control of Congress. Perceiving the Supreme Court as an impediment to his populist agenda, AMLO used daily press conferences to denounce the justices as overpaid, corrupt elites. 

Initially, Supreme Court president Arturo Zaldívar was receptive to AMLO’s accusations, persuading his colleagues to accept salary and budget reductions. However, Zaldívar’s successor, Norma Piña, led a much more oppositional court. One of AMLO’s signature initiatives was to overhaul and defund the independent electoral body — the National Electoral Institute (INE) — seen as one of Mexican democracy’s most important institutions. This involved reducing INE’s staff by 85%, which would have placed free and fair elections in serious jeopardy. When the INE case reached the Supreme Court, however, the justices sided against AMLO. 

Why Have Judges Defended Democracy?

These bold and surprising cases of judicial intervention in defense of democracy call for an explanation. Accordingly, the authors consider two sets of factors, one internal and one external to the judiciary. One external factor is connected to the fact that judiciaries often side with public opinion, which has increasingly opposed authoritarian maneuvers by executives. For example, although AMLO was popular, his anti-democratic electoral reforms were not, prompting mass protests in 2023. However, this factor has a harder time explaining judicial behavior in Colombia; as mentioned, President Uribe’s proposed third term received broad public support.

Perhaps the more compelling factors are internal to Latin American judiciaries. These include increasingly prevalent rules and norms favoring tenure protections. Another important factor involves the growing number of judicial appointees who are elite lawyers, such as those from academia or private practice. Because they are unaffiliated with traditional networks of political power, these judges have arguably been more willing to act against autocrats’ wishes. 

Finally, several cases may be explained by the facts that (a) judges, like other political actors, seek to preserve their positions and (b) attacks on democratic institutions threaten those positions. In Mexico, for example, AMLO’s assault on the INE, by threatening free and fair elections, would have upset the balance of power between the executive and judiciary. A similar case could be made in Brazil, where judges sought to preserve not only their autonomy but their physical safety. No single factor can explain every judicial ruling. Together, however, they help shed light on why Latin American judiciaries have stood up to powerful and popular elected autocrats.

*Brief prepared by Adam Fefer