Judges as equilibrists: Explaining judicial activism in Latin America

Abstract

Intense forms of judicial activism have emerged in Latin America in the last three decades. Judges dictated structural remedies decisions (SRDs) to create, design, and implement public policies to redress structural human rights violations, implementing permanent judicial monitoring of the policy process. In a region marked by judicial instability, SRDs are risky options for judges. They can be seen as strong challenges to the government and, thus, prompt retaliation. They can also damage judges’ reputations as they might be strongly criticized by influential conservative groups of society that oppose progressive structural reforms. What drives judges to pursue or avoid this kind of risky activism? I propose the equilibrist approach, an alternative model to standard accounts explaining judicial behavior in Latin America. It incorporates the legitimacy-building dimension of the strategic game and predicts some level of assertiveness but one that is careful about the preferences of elites, the mass public, and opinion leaders. I use the institutional yet fragile Argentine Supreme Court to test the model, as it decided several SDRs in the early 2000s.