Worldwide, we observe the increasing relevance of courts’ decisions on important matters, such as defending human rights and containing processes of power concentration at the hands of incumbent governments. Frequently, this endeavor is done by declaring unconstitutional certain legislation that transgresses democratic tenets, such as the principle of the separation of powers or the protection of minority rights. Therefore, this book starts with a thought-provoking and normatively consequential question: Why and when do courts decide to declare laws unconstitutional?
Some potential answers, as Lydia Brashear Tiede suggests, are that the variation in constitutional review powers or the fragmentation of power might impact courts’ decisions; however, these factors alone prove insufficient to elucidate the fluctuations in court decisions that transpire over electoral cycles or in the absence of any alterations to the institutional framework dictating the scope of court powers. Instead, Tiede contends that the method of appointing members of high courts could significantly shape the nature of judicial decisions. Particularly, the adoption of a mixed method of appointment, wherein diverse branches of government are involved, may culminate in the selection of judges imbued with distinct legal backgrounds and propensities to declare a law unconstitutional.
In her thought-provoking book, Tiede invites us to problematize and enrich the analysis of judicial decisions by recognizing that political life is complex, and so is the context in which constitutional judges make decisions. The analytical framework presented herein transcends the conventional focus on the political allegiances and sincere preferences that judges have, as well as their strategic behavior to avoid retaliation from other branches of government. Instead, it offers a nuanced explanation of the contextual factors inside a high court that affect its decisions. Particularly, this book centers its attention on the composition of courts with judges with different approaches to constitutional interpretation, and on how this changing and evolving court composition does not merely translate into the aggregation of individual preferences but displays “panel” effects as the deliberation process unfolds. A critical mass of judges with a certain adjudicating philosophy may influence other judges’ reasoning and thus impact the outcome of a ruling. Therefore, the individual and collective pronouncements on the unconstitutionality of a law are not only directly impacted by the procedure of judicial appointment, wherein institutional selectors opt for judges aligned with specific approaches to constitutional adjudication, but also indirectly molded by the process of collective deliberation that ensues among judges harboring divergent viewpoints.
To comprehensively examine the role of institutional design in the determination of judicial decisions, it is imperative to investigate why and how the mechanisms of appointment to high courts influence judges’ decisions to declare laws unconstitutional. The present work shows that out of 130 constitutional or supreme courts in the world with constitutional review powers, 68 courts, or 52 percent, use some type of mixed method of selection for appointing court judges. This method allows different branches of government “to choose different portions of the court” (48). Tiede chose to analyze two constitutional courts in Latin America that often are regarded as opposite cases of judicial activism: the Colombian Constitutional Court and the Chilean Constitutional Tribunal. By concentrating on these specific cases, Tiede is equipped to explore unique contextual factors, such as the historical context and the historical reasons that help explain why some branches of government prefer more activist or more deferring constitutional judges.
This multifaceted analysis, which considers the historical context, the issues solved by courts that are more salient in each society, and how each type of constitutional review works, among other factors, engenders a more precise empirical analysis. However, it is important to acknowledge that an in-depth understanding of the contextual nuances has limitations in its capacity for generalization to other judicial contexts. Each component of this intricate puzzle may incentivize divergent judicial behaviors across different jurisdictions. For instance, Tiede finds that presidential appointees on the Chilean Constitutional Tribunal are more likely to declare laws unconstitutional, while presidential nominees in the Colombian Constitutional Court are more likely to support the status quo. This work serves as a salient reminder of the limits of cross-comparative studies and the social sciences’ ambition of formulating universally applicable theories that transcend diverse temporal and contextual settings.
A particularly salient contribution of this book lies in its explicit elucidation of the nexus between the ideas that an institutional selector has about what should be the role of a constitutional judge and how the search and support for this specific type of judge translates into appointees with different propensities to strike down a law. By giving compelling evidence that the connection between the institutional selector and the judge’s voting record had been previously overlooked, Tiede propels us toward a broader perspective that transcends the confines of partisan perspectives or strategic motivations that judges might entertain when rendering decisions. It prompts us to contemplate the significance of the appointment process itself.
Additionally, the results showing the presence of panel effects on the court-level decision to declare laws unconstitutional provide compelling evidence for the merits inherent in the mixed method of selecting court judges. Instead of revealing a state of paralysis or gridlock resulting from judges’ self-identifying as either activists or deferential interpreters of constitutional principles, the findings demonstrate that individual judges in their decisionmaking process are collegial, influenced by others, and not mere agents of the branches that appointed them.
Building on the innovative findings presented in Tiede’s book, future research could explore and theorize what contexts make political ideology a more powerful predictor of judges’ decisions, compared to the preferences of their institutional selectors and the number of judges they are able to appoint. In the analysis presented here, the influence exerted by the institutional selector emerges as a more potent determinant than judges’ ideology or attributed partisanship. However, more research is needed to find out whether the limited or negligible impact of partisanship is a consequence of the relative frailty of ideology in the Latin American context, the empirical strategy used to measure it here, or conceivably, alternative factors.
Furthermore, given the increasing relevance of courts in political life, future research might also explore whether a mixed method of appointment not only influences courts’ propensity to strike down laws but also affects the deliberation process that might lead courts to assume a more assertive role in safeguarding social and political rights. Perhaps the presence of panel effects, by signaling that judges of one type are able to agree with judges of another type, is indeed a sign of healthy deliberations inside the court and an opportunity for reason to prevail over partisan interests. Tiede’s book, in this regard, paves the way for fresh avenues of inquiry, serving as an invitation to remain mindful of the pivotal role played by judges’ branch selectors in shaping the outcomes of judicial proceedings.
