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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Argentine Model of the Judicial Role
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Monday, May 02, 2022
The Argentine Model of the Judicial Role
Guest Blogger
This post was prepared for a
roundtable on Reforming the Supreme
Court of the United States, convened as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Samuel Issacharoff On
October 5, 1955, when I was just a year old, a New York Times reporter by the
name of Edward R. Murrow reported from Buenos Aires on developments in the
Argentine judiciary. The report concerned the actions of the new military head
of state, Lt. General Eduardo Lonardi, in dismissing the entire Supreme Court
and announcing that five new members would be installed that same week. General
Lonardi carried forward a national tradition of term limits and rotation in
office that ensured there would be no imperial judiciary frustrating the
exercise of state authority. It
is unlikely any tears were shed over the demise of the prior Court, as it too
was a subordinated institution. Upon taking power in 1946, Juan Perón put three of the
Court’s five judges on trial, forced the resignation of a fourth, and then
forced the capitulation of the last member of the Court. Not surprisingly,
Perón’s Court was a servile institution that formalized the demands of that
particular government. So ran a process where until the 21st
century, most Argentine heads of state were able to replace the entire
membership of the Court. So too the pattern can be seen in Peru under Fujimori,
in Russia under Yeltsin and then Putin, in Nicaragua under Ortega, in Bolivia
under Morales, and in the retirement/replacement/reassignment of the top
judiciaries in Poland, Hungary, and the remaining jewels of current illiberal
populism. For
those worried about the countermajoritarian dilemma, Argentina offers a
judiciary that for almost the entire 20th century acted in tight
conformity with the political authorities – leaving aside the technicality that
the counting of the political majority frequently consisted of comparing
bullets not ballots. There are of course details about how the judicial power
should be constructed, as evident from the extensive work of the recent
presidential commission in the United States. My own preferences would run to
12- or 18-year terms on the highest court, with rotation to the other ranks of
the judiciary once that service in complete. The hope is that, as in Germany,
this may temper some of the confirmation battles and reduce some
of the lag between political and judicial power. At
some point, however, alterations in the form of judicial service are designed
to render inconsequential the exercise of judicial authority. When the Peruvian
Constitutional Court confronted the increasingly authoritarian regime of
Alberto Fujimori, the result was a series of presidential decrees that
effectively shuttered the Court. To this day, the Court plays only a limited
role in Peru, in part because its seven members serve only a single,
non-renewable five-year term. With tenure that short, judges no sooner begin to
learn the job when they are forced to begin worrying about where they will
return to when their terms are up. Given that many are drawn from state
universities or the higher ranks of the civil service, there is a pronounced
reluctance to confront official power in any form. In
reality, most of the debates on the need to restructure the judiciary turn not
on the mechanics of appointment, on abstract or case specific judicial review,
on the discretion embodied in certiorari review, or on prudential
considerations such as standing. Instead, most of the non-academic debates are
fueled by political winners being unable to claim what they believe are their
full desserts from their time in power. One may speculate the extent that is
true for academic disenchantment as well. Oddly,
the major sources of indictment of the U.S. Supreme Court at present are as
likely to draw from charges of insufficiently overturning political majorities
rather than of doing so to excess. If one looks at the world of abortion rights
or the death penalty, for example, the rights-based claims of a woman’s right
to choose, or the right to effective counsel, are invoked as counters to the
fact that abortion prohibitions are rising at the state level, as is the
perpetuation of the death penalty, at least as a formal matter on the books.
The burden of Jamal Greene’s book on judicial review is to urge greater
accommodation of American judicial doctrine to strongly held political
determinations. No
matter how formulated, however, there is no escaping that the aim of a
constitutional court is to have some lag between political and judicial power.
This is the heart of the debate over judicial review and it is all the more
pressing in an era in which the legislative branch in virtually all democratic
countries has succumbed to strongman or dominant party rule. The structures of
either Montesquieu-style separation of powers or Westminster parliamentary
command are deeply compromised by the failings of democratic legislatures
before an increasingly imperial chief magistrate. In such circumstances, the
judiciary may serve as the central institutional counterweight to the
hypertrophic reach of executive power, today more likely to be marshaled
through decrees and administrative authority rather than the tanks rumbling
down Avenida del Libertador in Buenos Aires. Today’s
illiberals are more likely to rule after election to office rather than through
a coup or, as shockingly in Ukraine, a military invasion. The ensuing populist
claims to majoritarian rewards places constitutionalism in frequent combat with
democracy, much as the post-WW
II fashion was to treat these as synonymous terms. As expressed pithily from
his perch in parliament by the de facto ruler of Poland, Jaroslaw Kazcynski,
“In a democracy, the sovereign is the people, their representatives in
Parliament and … the elected president… If we are to have a democratic state of
law, no state authority, including a Constitutional Tribunal, can disregard
legislation.” Amid increasing discomfort before an
assertive judiciary protected by life tenure there is an understandable desire
to say this time the courts have gone too far. But major institutional reforms
are rarely without collateral consequences, both anticipated and beyond the
imagination of the reforming impulse. Weakening the judiciary as an institution,
let alone disabling its countermajoritarian authority in favor of unmediated
political power, is high risk. Especially in times when that power is likely to
be concentrated in executive hands, the desire to risk all on momentary
political power recalls the jurisprudence of Harry Callahan (a/k/a Clint
Eastwood): “Do I feel
lucky?” Samuel Issacharoff is the Bonnie and Richard Reiss Professor of
Constitutional Law at New York University School of Law. You can contact him at
issacharoff@mercury.law.nyu.edu.
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Books by Balkinization Bloggers ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. 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Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. 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