We did not see it coming: The unintended polarization induced by an institutional reform. The case of the Chilean Constitutional Tribunal

Abstract

In the search for balance among their powers in the nomination of members of top-level courts, political actors can design rules that unintendedly introduce political polarization within the judiciary and judges’ reputational concerns can sustain it in the long run. Factoring on the impact of a reform in Chile introduced in 2005 that modifies its Constitutional Court and on the record of its member’s votes between 1990 and 2016, this study finds evidence of an increasing polarization within the Constitutional Court that was unseen during the design of its new rules. In developing countries, in which political institutions -including the judiciary- face lower levels of trust among the citizenry, an increasing level of polarization jeopardizes their survival in the long run. Sign of that process are already in motion in the Chilean case with respect to its Constitutional Court.