Threats to Judicial Independence and Impartiality: The Attack on Mexico’s Supreme Court

by | Mar 12, 2024

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About Daniel Torres-Checa, Jaime Olaiz Gonzalez and Sebastian Inchaustegui-Arroyo

Daniel Torres-Checa is a constitutional litigator, partaking in cases before the Mexican Supreme Court and the Federal Courts. He is an MSc Human Rights Candidate at London School of Economics and Political Science (LSE). Jaime Olaiz Gonzalez is a Professor of Constitutional Theory and International Law at Universidad Panamericana. He holds a PhD from Yale Law School. Sebastian Inchaustegui-Arroyo is an Attorney at Law from Universidad Panamericana. Juris Doctor candidate at Columbia University, New York.

When Mexican President Andrés Manuel López Obrador announced his government plan, he formally promised to respect the judiciary’s decisions and institutions. Four years later, his promises are yet to be fulfilled, as tensions with the judicial branch have come to an inescapable boiling point. Since the beginning of his term, López Obrador has wasted no opportunity to challenge and undercut the Court’s constitutional powers.

In April 2019, Morena, the political party founded by López Obrador, attempted to pack the Supreme Court by appointing a new justices. Six months later, government agencies pursued and coerced a justice resignation to secure a new appointee. López Obrador is known for his recurrent disqualifications of the Court’s members, while Morena threatens to impeach judges who vote against to the president’s unconstitutional policies. Most recently, he went for the judiciary’s federal salaries and retirement savings and secured a new appointee by negotiating an early resignation of former chief justice Arturo Zaldivar.

Zaldívar handed Obrador a fifth Supreme Court appointment and, in return, received a position in the president’s political party. Obrador later admitted that Zaldívar “intervened” on behalf of his administration to prevent contrary rulings. The scandal has reinforced the relevance of the Court’s independence and has once again raised the issue of the president’s constant interference in the judicial branch.

The story of the popular leader who sees the judiciary as an enemy is not unique to Mexico. As Ziblatt & Levitsky note, in every modern democracy the Courts represent a “challenge and an opportunity”. The judiciary become either an ally that legitimizes political agenda with favorable resolutions or an obstacle to government-promoted policies and laws. Indeed, the Mexican Court has been both a partner and a barrier in López Obrador’s presidential term.

With Arturo Zaldivar as Chief Justice, the Court tended to side with the government and endorsed dubious policies and laws. For example, the Court upheld a decree that normalized the military’s involvement in public security, allowed a referendum to prosecute former presidents, and drafted constitutional and statutory amendments alongside Morena in Congress to “transform the judiciary from within”. During this time, the Court and some of its members were relatively tranquil amid some decisions that favored the President’s policies.

Things are not peaceful anymore. As López Obrador’s six-year term was coming to an end and Justice Norma Piña took over as new Chief Justice, relationships started to worsen. Under new leadership, a majority of justices have struck down presidential attempts to weaken the Instituto Nacional Electoral, a fourth-branch electoral watchdog, and declared the unconstitutionality of the law that granted military oversight of public security corps. These two key rulings against the President’s political agenda led López Obrador to refer to the justices as a mafia that “supports the oligarchy“.

Confrontations between a country’s Supreme Court and its political counterparts are typically ignited by its judicial decisions. The Mexican case is no exception. The Court was seen as an ally when it made a favorable decision. It was a mafia when it didn’t.

As the run-up for the 2024 general elections begins, the government has doubled down on this binary reasoning. In the past months, López Obrador has consistently targeted the judiciary as a “corrupt” branch that acts “against the national interest”. In this rhetoric, he has effusively sought out the electorate to achieve a qualified majority in the legislative branch that will allow his party to remove all the members of the Supreme Court.  The bet is to amend the appointment process and allow voters to elect the replacement justices, an institutional turn that would ultimately mean the demise of  the Court as we know it.

All in all, the governing coalition is embarking in a zero-sum campaign to highlight the inherent counter-majoritarian character of the Supreme Court and the federal judiciary as a systemic anomaly, rather than as an inescapable or necessary feature of the principle of separation of powers. A federal judiciary and a Supreme Court deprived of the minimal institutional conditions to operate with political autonomy puts them in a compromising position to fulfill constitutional duties and the protection of human rights.

Amid budgetary pressures, the realignment of its members and the proposal of omnibus package of constitutional amendments that threaten its basic structure, the Court is reaching a turning point in its institutional life. As some of its critics would like to show it as terminally ill, at this juncture, the Supreme Court is before a historic opportunity to affirm not only its importance for the survival of the republic as we know it, but also of its role as the staunchest protector of the constitution.

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