Scholars on Latin America Talk Judicial Independence, Democratic Erosion at Virtual Seminar

A group of scholars of Latin American politics and law discussed the threats to judicial independence posed by populist leaders in Brazil, El Salvador, and Mexico in a virtual discussion Tuesday hosted by the David Rockefeller Center for Latin American Studies.

The discussion — titled “Populism and the Courts in Latin America”— was moderated by Government professor and Co-Chair of the Center Steven Levitsky. Its panel featured Lilliam Arrieta, a law professor at the Central American University of El Salvador; Julio Ríos-Figueroa, an associate law professor at ITAM in Mexico; Diego Werneck Arguelhes, an associate law professor at Insper in São Paulo, Brazil; and Gretchen Helmke, a professor of political science at the University of Rochester.

Arrieta said Salvadoran President Nayib Bukele and the Nuevas Ideas party have unconstitutionally removed five supreme court justices without procedure in May and forced over 150 judges into early retirement in August, as part of a broader attack on the Salvadoran court system. She also noted how communication from the government is important to populists.

“[Populists] do not speak to the people. They do not speak with the people. They speak for the people,” Arrieta said. “What they want to convey is the message that they are the people, and this particular trait has been abused by our president and by his representatives in Congress.”

Ríos-Figueroa discussed how Mexico’s President Andrés Manuel López Obrador has used the power of the executive branch and his party’s large majorities in Mexico’s legislature to similarly attack the courts. He said it is uncertain whether the Mexican courts have lost their function as a check on the government.

“The coin is still in the air,” Ríos-Figueroa said. “We’ll figure it out in the next three years.”

Arguelhes argued that in Brazil, the courts have effectively stood up to the government of President Jair Bolsonaro, particularly on issues of political corruption and the Covid-19 pandemic. He said the Brazilian justice system has endured due to Bolsonaro’s failure to use executive power during the pandemic, the court’s criminal investigations into Bolsonaro and his allies, and the reluctance of the congress to attack the courts.

“He has mainstreamed illiberal positions on the separation of powers, that’s true,” Arguelhes said. “But so far he has been unable to curb, pack or reform the courts. And moreover inside the courts, no other president since democratization has suffered so many defeats in judicial hands.”

Levitsky said in an interview with The Crimson that lessons from the study of populism in Latin America can be applied to former United States President Donald Trump. He compared the situation in the United States to that in Brazil, where the court system was under pressure to enable the president’s agenda but managed to maintain its independence.

“You had a populist leader who screamed at the courts at times, who insulted judges, and who often subverted the law, but who lost in the courts a lot,” Levitsky said of Trump. “Even conservative courts, even judges he appointed, at times constrained him.”

In the discussion, Helmke noted Latin America continues to serve as a hotbed of populist, authoritarian political movements.

“Scholars who are studying other parts of the world really need to pay attention to Latin America to try to understand this phenomenon of democratic erosion,” she said.