The Reform Paradox: Judicial Institutions and Judicial Instability

39 Pages Posted: 12 Jul 2019

See all articles by Aníbal Pérez Liñán

Aníbal Pérez Liñán

University of Notre Dame

Andrea Castagnola

Universidad Torcuato Di Tella

Date Written: July 12, 2019

Abstract

How effective are institutional reforms in protecting judicial independence? We analyze all constitutional reforms affecting the design of Supreme Courts and Constitutional Tribunals in Latin America since 1900. Conventional wisdom indicates that certain institutional features should strengthen the judiciary. For instance, a constitutionally fixed number of justices will make “court packing” more difficult, and longer terms in office will protect judges from electoral cycles. Nomination processes involving multiple actors will produce fewer partisan justices, high requirements for impeachment will protect judges from legislative threats, and explicit powers of judicial review will assure politicians’ compliance with judicial decisions. We show, however, that institutional reforms often undermine judicial independence, even when they appear to improve constitutional design along these crucial dimensions. The reason for this paradox lies in the consequences of those reforms for judicial stability. Because major reforms produce turnover in Supreme Courts and Constitutional Tribunals, they create new opportunities for parties to appoint loyal judges and politicize the courts. Two mechanisms link institutional reforms with judicial turnover. In the short run, reformers exercise (and abuse) “constituent” power, restructuring the courts in ways that force the resignation of incumbent justices or create new vacancies. In the long run, formal constitutional protections for the judiciary create a strategic trap. If parties can use informal instruments, such as threats and bribes, to induce the resignation of judges, their incentives to deploy those blunt instruments are greater when justices are completely isolated from milder forms of political influence. We test those arguments with evidence for more than three thousand justices serving in Supreme Courts and Constitutional Tribunals of the US and 18 Latin American countries since 1925

Suggested Citation

Pérez Liñán, Aníbal and Castagnola, Andrea, The Reform Paradox: Judicial Institutions and Judicial Instability (July 12, 2019). Available at SSRN: https://ssrn.com/abstract=3418836 or http://dx.doi.org/10.2139/ssrn.3418836

Aníbal Pérez Liñán (Contact Author)

University of Notre Dame

Department of Political Science
2060 Jenkins Nanovic Halls
Notre Dame, IN 46556
United States

Andrea Castagnola

Universidad Torcuato Di Tella ( email )

Minones 2159
C1428ATG Buenos Aires, 1428
Argentina

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