Radicalization and the Origins of Populist Narratives about the Courts: The Argentinian Case, 2007–2015

Abstract

In Latin America, presidents from different ideological backgrounds have systematically attacked the judiciary in order to implement their preferred public policies. In many cases, the leaders who control the executive branch have shown an early normative opposition to the power of courts to engage in the process of judicial review. For this article, I conducted a case study of Argentina from 2007 to 2015 under President Cristina Fernández de Kirchner that showed a different pattern and dynamic. After judges started to block public policies, she challenged the conception that liberal democracies require an independent judiciary with the constitutional ability to limit the scope of action of the executive and legislative branches. This view challenged the traditional liberal-democratic conception of the judiciary as a counter-majoritarian branch. The presidential party characterized judges as an aristocratic caste who ruled against the popular will in order to protect corporations’ economic interests. Consequently, the president proposed a “democratized judiciary” in which judges rule following the “people’s will,” which meant whatever the president elected by a circumstantial electoral majority decided.