ABSTRACT
There is general consensus that the 2000 presidential election represented the concrete embodiment of the birth of Mexican democracy after the Institutional Revolutionary Party (PRI) lost the presidency after being more than seventy years in office. The change of ruling party in governance had a significant impact on all the country’s political institutions and the Supreme Court was no exception. But to what extent did the emergence of democracy in the country allow Mexican justices to be a true arbiter in mediating intra-elite conflicts? Do justices’ party loyalties still affect the way a justice votes? The objective of this chapter is to examine the voting behavior of the justices on politically sensitive cases, those that arise from conflicts among the different levels and branches of government, and between different political parties. We argue that the political context and ideology of justices can affect the way a justice votes as well as the particularities of the constitutional design of each means of constitutional control. We answer these questions by analyzing Supreme Court rulings from 2000 to 2011 on constitutional controversies and constitutional actions on organic issues. The literature has traditionally considered that, overall, unconstitutional rulings are a sign of judicial independence and in this case, due to the particularities of the Mexican political context of divided government and high institutional stability, we would follow that idea. Since 1929 the Revolutionary National Party, the predecessor of the PRI, has
been appointing all the justices to the court without any institutional or political constraint, except from those that guaranteed political equilibrium inside the party. In fact, by 1933 the unwritten prerequisite to remain on the bench was to be affiliated to the PRI (Cabrera Acevedo 1998). During PRI supremacy, the court, as well as the Congress (Casar 1999), was merely a rubber stamp since it became more like an institutional office extension of the party rather than an
independent body (Magaloni 2003; Magaloni 1997), or as what Beatriz Magaloni (2003) refers to as a partisan system of elite circulation.1 Intra-elite conflicts, both horizontal and vertical, were often resolved by the president’s office rather than in the Supreme Court; therefore it is no surprise that only fifty-five constitutional controversies reached court between 1917 and 1994. This represents fewer than one controversy per year (Cossío 1998). Society strongly acclaimed the end of PRI hegemony on the court because
changes in court membership could bring changes in the policy outcomes of its rulings as well as in the judicial behavior of the justices. However, existing research presents inconclusive evidence about that assumption. Even though Julio Ríos-Figueroa (2007) finds that unconstitutional rulings against the PRI increase when there is more fragmented power, Arianna Sánchez et al. (2011) find that on controversies justices have favored PRI even after the electoral defeat of 2000. In this paper we analyze the controversies and constitutional actions of the justices’ vote on particular decisions so as to make predictions about the justices rather than the court as a collegiate body. The paper proceeds as follows. Section I briefly discusses the literature on
judicial behavior, paying special attention to the studies carried out in Latin America. Section II presents the model of judicial behavior that can be applied to the Mexican case, taking into account the particularities of the political and institutional context. The literature would predict that in a stable politically institutional context with a fragmentation of political power it is expected that justices would not be constrained in their decisions by external actors and thus not fear to argue against the ruling party. Section III presents descriptive evidence about Supreme Court rulings on controversies and actions. We have created an original data set of more than 1,000 cases from 2000 to 2011. Overall, justices have been deferential to the ruling party and justices appointed during the National Action Party (PAN) administration have been the most aggressive in their decisions, contrary to justices appointed during the PRI administrations. Section IV presents the results of a random intercept logistic model that predicts the probability of a justice to rule unconstitutionally under different scenarios. During the twelve years analyzed we found that, even under divided government, justices favored the ruling party in detriment to the former hegemonic PRI. Section V discusses the main contributions of our findings to the existing literature.
