The Logic of Strategic Defection: Court–Executive Relations in Argentina Under Dictatorship and Democracy

Abstract

Building on the separation-of-powers approach in American politics, this article develops a new micro-level account of judicial decision-making in contexts where judges face institutional insecurity. Against conventional wisdom, I argue that under certain conditions the lack of judicial independence motivates judges to “strategically defect” against the government once it begins losing power. The result is a reverse legal–political cycle in which antigovernment decisions cluster at the end of weak governments. Original data on more than 7,500 individual decisions by Argentine Supreme Court justices (1976–1995) are used to test hypotheses about why, when, and in which types of cases judges are likely to engage in strategic defection. Consistent with the theory's predictions, the results of the analysis show a significant increase in antigovernment decisions occurring at the end of weak dictatorships and weak democratic governments. Examining subsets of decisions and controlling for several additional variables further corroborate the strategic account.

To elect or to appoint? Bias, information, and responsiveness of bureaucrats and politicians

“…10 In this paper we follow the approach 6 More broadly, there is overwhelming evidence showing that judges are sensitive to the political environment. See Brace and Hall (1990, 1993 for US states, Gely and Spiller (1990); Spiller and Gely (1992) for the US Supreme Court, Helmke (2002) and Tommasi (2002, 2006) for the Supreme Court in Argentina, along many others. 7 Choi, Gulati, and Posner (forthcoming) conclude that appointed judges write higher quality opinions than elected judges do, but elected judges write more opinions.…”

De FactoJudicial Independence and Physical Integrity Rights

“…We concur with Burbank and Friedman (2002: 11-12) that no court enjoys "complete decisional independence" from any conceivable constraint (Seidman 2001). Given the wealth of scholarship showing the influence of extralegal factors in judicial decision making at the individual level (Segal and Spaeth 1993;Hall and Brace 1996;Helmke 2002), such a definition sets the bar too high for judicial independence and is probably undesirable in any event. Our definition of de facto independence also accepts that judges may be (properly) constrained by legal and institutional factors in their decisions and that political entities may properly use the regular procedures of the court to advocate for their position without necessarily compromising the independence of the court (Kornhauser 2002: 48).…”

Law and Courts in Authoritarian Regimes

“…Reform-minded judges can apply subtle pressure for political reform at the margins of political life (Ellett 2013), but core regime interests are typically challenged only if it appears that the regime is on its way out of power. In most cases, reform-oriented judges bide their time in anticipation of the moment that the regime will weaken to the extent that defection can tip the broader constellation of political forces (Helmke 2002(Helmke , 2005. 8 6 For dozens of case studies of the legal complex in action (and sometimes taken out of action), see Halliday & Karpik (1997) and Halliday et al (2007Halliday et al ( , 2012.…”

“…Aside from a deeper understanding of how law and courts operate in authoritarian contexts, this literature further contributes to a wide variety of substantive research agendas, including transitional justice (e.g., Aguilar 2013), human rights (e.g., Keith 2011, Pereira 2005 durability (e.g., Hilbink 2007, Moustafa 2007b, Rajah 2012), regime transition (e.g., Chavez 2004Helmke 2002Helmke , 2005, rule-of-law promotion in fragile states (e.g., Massoud 2013), and many others. These works underline the central importance of law and courts to a wider community of scholars working on the nonlegal dimensions of each of these substantive issue areas.…”