Strategic Deference in the Colombian Constitutional Court, 1992–2006

Abstract

Under what conditions are justices able to make decisions that are contrary to the executive's preferences in strong Latin American presidentialisms? To answer this question, I formulate a theory of interbranch relations, particularly of the interplay between courts and justices, on the one hand, and executives and legislatures on the other. The model of strategic prudence involves a game between two players-a court and a government-as well as a stage in which this game takes place, including the institutional design and the political environment. It specifies how players' policy preferences and their assessments of the personal and institutional risks involved in their decision making interact with the institutional setting and the political context. Based on the empirical implications derived from the game, I hypothesize that when courts are institutionally insulated, justices are more likely to decide based on their own preferences, while an institutionally weak court makes them act strategically based on their perception of how the political environment enhances or hinders the government's ability to build a coalition to sanction the court. I test the empirical predictions of the game with the case of the Colombian Constitutional Court (CCC). I combine qualitative evidence, including press coverage and interviews with former justices and law clerks, with a systematic quantitative analysis of an original dataset of abstract review cases decided by the CCC between 1992 and 2006. Given its well-deserved reputation of autonomy and progressive activism, the CCC provides a-crucial case‖ test of the strategic prudence theory. The analysis of individual judicial decisions provides v strong evidence supporting the hypotheses derived from the game's comparative statics analysis. Justices tend to be prudent when they face a strong administration and when the case under review is salient for the executive. In addition, they are more likely to annul legislation when they have stronger preferences against it and when they anticipate that the incumbent would have to pay a higher cost should it attempt sanctioning the court. This dissertation contributes to the subfield of judicial politics in Latin America and is the first comprehensive study of the Constitutional Court in Colombia. vi TABLE OF CONTENTS

Concentrated judicial review in Brazil and Colombia: which (or whose) rights are protected?

“…In Colombia, "not only can any citizen present in front of a lower court but also, with very few formalities, any citizen can file a constitutional challenge to legislation (i.e., an abstract review case)". 117 The comparison between Brazil and Colombia presents relevant insights into how the dimension of authority and, specifically, standing to access the main courts in each system can make a large difference in the protection of social and individual rights.…”

Can Courts Be Bulwarks of Democracy?

“…Perhaps of greatest concern, scholars have suggested that in order to avoid conflict and non-compliance, judges often engage in politically deferential patterns of decision making, at least in particularly salient cases, which render the constraints they might place on governments practically non-binding (e.g., Bill Chávez and Weingast, 2011;Rodríguez-Raga, 2011;Carrubba, Gabel and Hankla, 2008;Chilton and Versteeg, 2018). Summarizing these challenges, USAID's Office of Democracy and Governance writes:…”

Constitutional Design Two Ways: Constitutional Drafters as Judges

“…134 While clearly subject to criticism, and more recently a serious scandal involving corruption, 135 the Court also has generally enjoyed a strong reputation for independence and the capacity to ensure compliance with its decisions. 136 In Indonesia, prior to a scandal involving corruption in 2011, the Constitutional Court generally was seen to have made a "significant contribution to Indonesia's transformation from a conflict-ridden, politically unstable country into a consolidating democracy" 137 and to have "performed with professionalism and integrity unmatched by Indonesia's other judicial institutions, perhaps even in Indonesian legal history." 138 In South Africa, both internal and external observers have celebrated the Constitutional Court's role in the transition to a multiparty democracy.…”