Academic debates on judicial review usually focus on issues such as the democratic deficit of the judiciary or the capacity of legislatures and courts to protect fundamental rights. Often unaddressed is the question of whether the legitimacy of the constitution itself impacts the legitimacy of judicial review. Of course, this debate generally takes place in countries where the legitimacy of the constitution is uncontroversial. But this is not universal.
I will address the link between the legitimacy of the constitution and the legitimacy of judicial review by focusing on the Chilean case. The case is interesting because in Chile both the Constitution and the Constitutional Court are challenged in its legitimacy. Constituent process carried out in 2016 provides useful data to assess the link between both. I will analyze the reports of the process, in order to find whether the objections against the Constitutional Court are or not linked to the legitimacy of the 1980 Constitution.
By estimating the ideal points for the Justices of the Chilean Supreme Court (public law chamber, period 2009-2018), this research attempts to identify coalitions inside the Court and provide a measurement to predict the justices’ behavior. To this end, we followed Martin & Quinn (2002)’s method for studying the U.S. Supreme Court, applying an IRT model that allows to generate judges’ ideal points via a MCMC method to fit a Bayesian measurement model of ideal points for judges. The Chilean Supreme Court composition is substantially less stable than its counterparts in the U.S. or Europe, its workload is significantly higher and the rate of split decisions is considerably lower. Thus, the Court’s design poses challenges to study covariate effects on split decisions. The flexibility of this specification, to provide answers to different questions in the Chilean context, is discussed.
Due to the development of new sets of decision-making strategies and the increasing presence of Economic, Social and Cultural Rights in Constitutions, especially in Latin America, legal and political science researchers shifted their attention to investigate and measure the social, public and private bodies compliance with judicial decisions. We mapped three historical waves in the judicial compliance field of study: the start in the 1960s focused in the United States jurisdiction; the expansion in the 1990s and 2000s to monitor the domestic compliance to International Courts decisions, and more recently – after the 2000s –targeting the Global South Courts on structural litigation. Based on the literature review, this paper claims that clear and rigorous methods are central for judicial compliance measure in the comparative constitutional law scholarship and presents best-practices that can guide future works in the field and courts institutional initiatives for judicial compliance.
Consubstantiating the conservative world wave (Huntington, 1991), in the wake of left wing President Dilma’s impeachment, in 2016, the rise to power of the right wing set the course to changes in public law that threaten hard earned democratic and liberal values. In Brazil, new legislation and court’s interpretations portray the conservative values penetrating society. This paper suggests public law in Brazil, on the other hand, show reactions to this wave, reaffirming constitutional principles related to human rights and human dignity. This study analyzes two relevant aspects of Brazilian public law: 1) the 2015 Civil Procedure Code, based on constitutional principles and guaranties (Câmara, 2016); 2) the Supreme Court’s counter-majoritarian performance in cases where it reaffirms human dignity by preserving constitutional individual rights (Barroso, 2012, 2015). As a result, it is suggested Brazilian public law has been reacting to conservative ideas, reaffirming the constitution.
Latin American democracy has been through critical moments lately. The ex-president Fernando Lugo was impeached in 2012 in Paraguay. More recently, the Venezuelan President, Nicolás Maduro, convoked a Constituent Assembly election. In this context, Brazil also has been in crisis, especially after 2014 when it happened the elections to choose the President of Republic. Despite the crisis are concerned between Executive and Legislative branches, I will argue that there is another principal actor in this scenario: the Judicial branch. Despite that democracy crisis in Brazil is a political problem between Executive and Legislative, I suppose that the Judiciary has contributed to increasing the political crisis, especially when it exceeds the principle of the balance between the branches of government. To show my hypothesis I will present the argument that the political crisis in Brazilian has had a decisive contribution from the Judiciary because it has been broken the Rule of Law.