Control and paralysis? A context-sensitive analysis of objections to supermajorities in constitutional adjudication

Abstract

Abstract Supermajorities in judicial review are present in several countries, including the United States (at the state level), Mexico, Peru, the Czech Republic, Chile, and South Korea. Despite their prevalence, the theoretical legitimacy of supermajorities has been a topic of intense debate since the early twenty-first century. A notable gap exists between this theoretical discourse and empirical research that examines the supermajority models in practice. This article endeavors to bridge this gap. Focusing on two important concerns raised in comparative scholarship—namely that supermajorities might enable political branches to control the court through select appointments, and they could potentially paralyze constitutional courts—this article offers a nuanced examination of the Mexican scenario. It argues that specific mechanisms governing judicial appointments, such as staggered terms and pluralistic appointments, can effectively mitigate the risk of court control in supermajority settings. Furthermore, a thorough assessment of an ad hoc dataset on decisions in which the supermajority was applicable suggests that these majorities do not paralyze the court.