Judicialization—understood as the empowerment and activation of legal actors and institutions to constrain politicians and protect individual rights—has generally been hailed as a positive phenomenon that enhances the rule of law and the quality of democracy, both globally (e.g., C. Neal Tate and Torbjörn Vallinder, The Global Expansion of Judicial Power, 1995) and in Latin America, in specific (Rachel Sieder, Line Schjolden, and Alan Angell, eds, The Judicialization of Politics in Latin America, 2005). The core feature shared by the two books reviewed here is a new caution about the potential negative consequences of judicialization. To be sure, both works acknowledge that there have been positive consequences of judicialization, but the intellectual thread that connects them is their emphasis on the underexamined risks and corrosive effects of “big bang” or “big push” judicialization (Luciano Da Ros and Matthew M. Taylor, p. 7, 124), which does “too much, too fast” (Sanra Botero, Daniel M. Brinks, and Ezequiel A. Gonzales-Ocantos, p. 25), and they seek to understand the factors contributing to these harms.
Brazilian Politics on Trial: Corruption and Reform under Democracy is a coauthored manuscript examining corruption in Brazil over three decades, from the 1980s to the 2010s. Brazil transitioned to democracy in 1985, and the authors study corruption in the context of a nascent, large democracy. Their work is guided by three interrelated questions: What explains the “constancy of corruption” in democratic Brazil? Why have reforms not had the desired effect of reducing corruption? What lessons does Brazil offer to the rest of the world? (pp. 2–3).
Chapter 2 focuses on Michael Johnston’s concept of “elite cartel” corruption (Michael Johnston, Syndromes of Corruption: Wealth, Power, and Democracy, 2005), and how elite cartel dynamics are exacerbated by the following features of Brazilian politics: (1) coalitional presidentialism marked by a fragmented party system, (2) a developmental state in which public institutions are deeply enmeshed in investment, business, and industry, and (3) a complex campaign finance system that, in a fragmented party system, has made campaigns expensive while concentrating funding in a small group of wealthy donors (pp. 15–17). Chapter 2 also sets the recent historical stage by documenting three decades of major anticorruption efforts in order to better understand how these efforts developed expertise and opportunities that facilitated the emergence of the most recent anticorruption project, the prominent Lava Jato (“Car Wash”) investigations. Lava Jato began in 2014 as an investigation of a small Brazilian car wash but quickly led to the discovery of a large-scale corruption scheme within the government, especially amid state-owned firms.
Chapter 3 offers a theoretical framework of accountability focused on the following model, A = (T + O + S) × (C + E – D), where A is accountability, T is transparency, O is oversight, S is sanction, C is capacity, E is civic engagement, and D is political and economic dominance. This chapter also illustrates how Brazil took incremental steps related to this model from the 1980s to the 2010s. The authors’ main focus is on the Lava Jato investigations of the 2010s (detailed in Chapter 4), the aftermath of these investigations (Chapter 5), and comparative lessons for other countries (Chapter 6). Chapter 4 documents Lava Jato as an instance of “big push” anticorruption efforts that contrasts sharply with earlier incremental steps. Chapter 5 also discusses the backlash to Lava Jato, and wider lessons that can be drawn from it. Chapter 6 turns to broader, cross-national implications, and Chapter 7 closes with some final reflections. An appendix documents major, federal corruption scandals from 1985 to 2021.
The Limits of Judicialization: From Progress to Backlash in Latin America is a coedited volume comprising 13 chapters. Its main goal is to assess the consequences of judicialization in Latin America, whose countries were among the “earliest and most enthusiastic adopters of judicialization” (p. 1). It emphasizes that, in Latin America, judicialization occurred due to (a) institutional changes that empowered courts and (b) broader cultural changes that emphasized the desirability of strong courts and the importance of legal actors to consolidate and deepen democracy. The editors focus on the following questions: “[T]o what extent have Latin American judicial institutions lived up to these expectations? What exactly did these new institutions promise and what did they actually deliver?” (p. 2).
For scholars of comparative law and courts, or broader audiences concerned with law and democracy, The Limits of Judicialization is a somber, sobering volume. In the introduction, the editors not only acknowledge the positive consequences of judicialization but also focus on the under-examined negative effects of this process. While the individual chapters have different substantive foci, two key themes help understand the limits and negative consequences of judicialization: (1) weak state capacity and (2) weak societal support (e.g., 5–6, 19).
Chapter 2 examines the gap between progressive human rights jurisprudence and the ineffective investigation and prosecution of violent crimes in Mexico (39–41), concluding that this gap is due mainly to the two above factors highlighted by the editors. Chapters 3 and 4 examine the effects of judicialization on abortion and reproductive rights. Chapter 3 documents how feminist NGOs advocating for reproductive rights in Peru became highly professionalized and specialized, while conservative, antiabortion groups remained more connected to grassroots movements. Over time, the feminist organizations had high-profile victories in the courts, but conservative actors have effectively blocked their implementation. The Peruvian case shows the importance of social support, or the “risk of an overspecialization of strategic litigation detached from social movements” (p. 67).
Chapter 4 also focuses on the abortion debate and examines the uneven trajectory of the progressive abortion rights movement. However, it highlights that opposition to the abortion rights movement does not always come in the form of a reaction to a court decision. The chapter identifies distinct types of backlash or counter-movements in different countries, such as the conservative use of key institutions, including the courts in Argentina, the national legislature in Brazil, subnational legislatures in Mexico, and the state bureaucracy in Colombia.
Chapter 5 examines the trajectory of anticorruption efforts in Guatemala, focusing on the rise and fall of the International Commission Against Impunity in Guatemala (CICIG). Created in 2006–2007, the CICIG was designed to control corruption, with the expectation that this would also help reduce violence (p. 123). The chapter shows how and why a confluence of domestic and international factors led to the demise of the CICIG, despite strong popular support for the institution. It chronicles the backlash against accountability for business and other economic and corporate actors in Colombia during the transitional justice process known as “Justice and Peace”. Broad accountability was discussed during negotiations and in an agreement signed in 2016, yet there was substantial backlash against corporate accountability. Different institutional spaces formed through which the business sector mobilized against accountability.
Chapter 7 examines the legitimacy of the Colombian Constitutional Court. Its authors use experimental vignettes to probe the “extent to which a court can cultivate its public legitimacy” depending on the arguments judges use in “controversial” decisions (p. 165). Notably, the vignette is about a decision that “completely decriminalizes abortion” (p. 165). The authors find that referring to scientific evidence as the rationale for a decision contributes to the perceived legitimacy of that decision.
Chapter 8 examines family ties within the federal judiciary in Mexico, identifying when and how they form networks of corruption. It highlights that the high incidence of family-based hiring is compelling evidence of a practice that “eviscerates meritocracy in the judiciary” (p. 211). A key point of the chapter is that, despite substantial institutional reforms, persistent informal practices of patronage and corruption persist. Some elements of the judiciary have undergone reform, while others remain weak and unchanged—including how the institution is staffed, thus limiting the reform project.
Chapter 9 uncovers corruption in the Ecuadorian Constitutional Court, which was granted extensive powers by the 2008 Constitution. It argues that corruption in the Court was facilitated amid the concentration of central political power. During this time, judges of lower status were appointed who were more prone to engage in corruption compared to the previous ones, who were better educated and well-regarded. The new judges had little to lose, including in terms of their reputation, and sought to take advantage of their time serving the country’s high court to gain perks and privileges.
The last four chapters focus on the Lava Jato investigation in Brazil. Chapter 10 directly connects with some of the issues discussed in Brazilian Politics on Trial. The authors note the initially high expectations created by what appeared to be newfound anticorruption capacity and accountability. “Lava Jato gave hope to Brazilians who yearned for legal accountability” (p. 247). Yet, this quickly changed. Among the sources of backlash to Lava Jato, the chapter highlights the negative public perceptions caused by using the coercive environment of pretrial detention to elicit plea bargains, the selective release of information, and Judge Sergio Moro’s resignation from a federal judgeship to join the right-wing administration of Jair Bolsonaro, which suggested partisan bias. Ultimately, just like in Ecuador, the challenge of corruption and impunity is embedded in the political system.
A lesson from both books is that building stronger legal institutions and accountability is a process that needs to be deeply rooted in society. Further, since this process is inherently oppositional and reversable (i.e., non-monotonic), it is never complete and requires constant attention and effort. Brazilian Politics on Trial examines the long arc of anticorruption efforts, providing a theoretical framework for better understanding accountability and integrity, examining historical episodes of failed accountability, and then focusing on what the authors consider an initially successful, even if ultimately short-lived, anticorruption effort, the Lava Jato investigations. Accountability is now weaker in Brazil than it was before the “big judicial push” of the Lava Jato investigations. Within the confines of Brazil, the book offers a nuanced picture that helps understand the conditions that made Lava Jato possible in the first place, and also the reasons for the substantial backlash it caused and, ultimately, for its failure.
The theoretical model of accountability in Brazilian Politics on Trial helps connect both books and identify complementary contributions and several questions that may motivate future research. Chapter two of The Limits of Judicialization highlights low state capacity and weak societal support and how these factors limited the fight against violent crime in Mexico, which aligns nicely with Da Ros and Taylor’s discussion of state capacity and civic engagement. Chapters 8 and 9 also show how judicial nepotism and corruption undercut state capacity. Further, insufficient societal support weakened abortion advocates in Peru (Chapter 3) and anticorruption efforts in Brazil.
Public support can be generated by scientific argumentation in court, as was the case in Colombia (Chapter 6). It can also be manipulated or “engineered”, such as by key actors strategically releasing information (Chapter 13). Yet, as highlighted in both books, the strategic use of legal tools carries a high risk of backfiring, and it can be framed by opponents as the misuse of these tools (Chapters 11–12). Societal actors can also mobilize for or against accountability, depending on their ideology. Ultimately, it remains unclear how much societal support is enough to sustain judicialization or accountability. It is also unclear how much public support is needed to successfully oppose any backlash to judicialization. These issues require future investigation.
Turning to political dominance (D), Chapter 9 of The Limits of Judicialization examines the harmful effects of the concentration of political power in Ecuador. However, it is not clear that de-concentrating power is always helpful since power may remain concentrated in different pockets of the government. The chapter shows how conservative opposition to abortion movements can come from different levels or branches of government where conservative power is concentrated, including subnational legislatures, an observation that is surely of relevance to audiences in the U.S. and other federal systems.
Examining all six inputs of accountability together, it is not clear in Brazilian Politics on Trial how each of these inputs should best be sequenced, or whether the sequence depends on the legal area or institution, and The Limits of Judicialization also does not elucidate this. What is more, while Da Ros and Taylor argue that all six elements are needed, it is not clear how much of each is required, or whether a bounty of one can overcome a deficit of another.
There are multiple areas in both books that are of interest to broad audiences seeking to better understand the politics of law and of courts, especially from a comparative perspective, including issues of institutional design (e.g., the CICIG in Guatemala), institutional change (reform and counter-reform), and novel uses of institutions. Legal scholars will find much interest in both volumes, including the documentation of the first use of a plea bargaining agreement in Brazil in 2004, in the Banestado corruption case (Brazilian Politics on Trial, p. 26). Further, the core issue of societal support overlaps with the literature on institutional legitimacy; and the discussion of the factors influencing societal support resonates with existing work on judges’ attention to public support (e.g., Georg Vanberg. The Politics of Constitutional Review in Germany, 2005), judicial public relations (e.g., Jeffery K. Staton. Judicial Power and Strategic Communication in Mexico, 2010), and the relationship between media and legal institutions (e.g., Richard Davis and David Taras, eds. Justices and Journalists: The Global Perspective, 2017).
There is also much discussion of the interdependence of justice institutions, which connects to the existing literature on “webs of accountability” (Scott Mainwaring and Christopher Welna, eds. Democratic Accountability in Latin America, 2003; Timothy Power and Matthew Taylor, eds. Democratic Accountability in Brazil, 2011), the legal complex (Terence Halliday, Lucien Karpik, and Malcolm Feeley, eds. Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Change, 2007), and the justice complex (Ingram, Matthew C., and Diana Kapiszewski, eds. Beyond High Courts: The Justice Complex in Latin America, 2019).
Given that Da Ros and Taylor highlight the distinction between incremental change and big push efforts, I would have enjoyed a deeper discussion of the conditions that make each process more likely to succeed. Reformers and policy audiences would also find this useful. To be sure, some of this is in the book. Da Ros and Taylor say that there is little evidence for the success of big push efforts, and that incremental approaches fare better overall. However, they also argue that a big push might be successful if there is sufficient motivation to support it, such as in the context of an “existential threat”, including war, invasion, or insurrection. This is where an extended discussion would have been useful. For instance, what do the authors exactly mean by “existential threats”? Does regime change qualify? If yes, then, if a country faced a challenge from within that risks plunging it into conflict or authoritarianism, would a big push be advisable? Does their accountability model provide any guidance for decisions on this? If some factors of their accountability model are very present, is a big push more (or less) advisable in moments of crisis? These are thorny, difficult questions, but I would have enjoyed learning about the authors’ expert judgments on these issues.
One of the lessons of the two volumes is that making courts and other legal institutions prominent, especially if moving quickly, may trigger substantial antidemocratic sentiment. This conclusion directly speaks to a literature on legal systems and the courts. One current of scholarship is fairly solicitous of a prominent role of courts in democratic societies, portraying them as defenders of rights and arguing that democracy is strongest when courts are center stage. Yet, another tradition argues that strong rights may require weak courts, or at least courts that are more receding, and that it is broad societal support outside the courts that sustains these rights and the quality of democracy as a whole, not the judiciary itself (Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law, 2007). This is also the appeal of Stuart Scheingold’s (1974) The Politics of Rights: Lawyers, Public Policy, and Political Change and a more recent literature on popular constitutionalism (e.g., Larry D Kramer. The People Themselves: Popular Constitutionalism and Judicial Review, 2004; Christian G. Fritz. American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War, 2009).
To conclude, a key question of broad interest that is explored throughout both volumes is why does accountability happen? Conversely, why does impunity persist? Both books offer important answers to these questions, and they also illuminate pathways for future research.
