Chapter 2 introduces the conceptual and theoretical frameworks, as well as the study’s methodology. In this chapter I propose and defend a conceptualization of judicial impact. Then, I develop and explain the main argument: that two elements are key to shaping impact for structural rulings, namely monitoring mechanisms and legal constituencies. Deploying monitoring mechanisms allows courts (and other participants in monitoring venues) to impose costs on the targets of the rulings and to offset information and power asymmetries. Legally empowered advocacy organizations (legal constituencies) can exercise legal follow-up and mobilize around the issue in the aftermath of the ruling. On their own, the presence of court-promoted oversight mechanisms or of legal constituencies can promote some effects. However, when combined, they can configure a collaborative oversight arena and ultimately yield higher impact results. The chapter closes explaining the research design: I introduce the eight case studies (four rulings from Argentina and four from Colombia) and the logic of the cross-case comparisons.

Chapter 7 provides an overview of the book, its main findings and refinements to the theory based on the lessons learned. It closes by presenting the study’s broader implications for normative arguments against judicial intervention on socioeconomic rights, and for theories of judicial power. This book shows that high courts can contribute to the advancement of rights, though they cannot do so alone nor can they offer silver bullets. The Colombian and Argentine highest tribunals have, at times, successfully configured important new political spaces for effective pursuit of public policy goals, in conjunction and dialogue with external actors. In doing so, they have increased their power and positioned themselves as non-negligible political forces.

Chapter 3 presents comparative case studies of two structural socioeconomic rights rulings: Argentina’s Causa Mendoza – an environmental ruling – and Colombia’s T-760 – a ruling safeguarding the right to health. In both cases, a collaborative oversight arena was created as a result of the convergence of legally empowered advocacy organizations and court-promoted monitoring mechanisms. The collaborative oversight arenas created spaces in which different participants could exercise accountability for unfulfilled commitments from the government and private agents and, more specifically, for the implementation of different aspects of the rulings. Additionally, the creation of spaces for sustained interaction around offered the chance for the diffusion of policy ideas and a rights-based framework, while giving civil society actors access to the state. The case studies also identify unintended and negative consequences from the rulings, recognizing these as integral parts of impact.

Chapter 4 presents case studies of the impact of four landmark socioeconomic rights rulings. Each pair of case studies seeks to uncover the influence that one of two elements can have on judicial impact: court-promoted monitoring mechanisms and the presence of legal constituencies. The first pair of cases explores the aftermath of rulings that have dense legal constituencies but no court-promoted oversight mechanisms: First, Causa Verbitsky in Argentina, a decision in which the court safeguarded the rights of inmates in the Buenos Aires Province. Second, C-383 1999 in Colombia, a decision in which the court safeguarded the right to housing of Colombian mortgage debtors. The second paired comparison looks at two structural rulings in which monitoring mechanisms were put in place but where there were low density legal constituencies. The first case in this pair is Causa Badaro in Argentina, a decision in which the court protected the right to pension of Argentine seniors earning above 1,000 Argentine pesos. The second case is T-547 2010 in Colombia, a decision in which the court protected the right to prior consultation of the Indigenous people of the Sierra Nevada in Santa Marta.

Chapter 5 presents the last two case studies of the book; this paired comparison completes the four sets. This pair of rulings has in common a lack of court-promoted monitoring mechanisms as well as the absence of legally empowered advocacy organizations. The first case study delves into the aftermath of the Chaco v. Defensor del Pueblo ruling in Argentina, where the Argentine Supreme Court sought to safeguard the rights of the Qom Indigenous group in the Chaco Province. The second case study is of T-231 1993, a ruling handed down by the Colombian Constitutional Court seeking to protect the right to a healthy environment for the inhabitants around the Bogotá Canal, in Cúcuta.

This Introductory chapter previews the main argument. I emphasize that there are two key elements in shaping judicial impact for structural cases: the oversight mechanisms that some high courts deploy to monitor compliance with their structural rulings and the advocacy organizations that mobilize in the aftermath of these rulings. The chapter also presents the book’s three main contributions: First, a careful dissection of post-ruling politics uncovers the mechanisms that create impact. Second, through a comparative study of monitoring tools, the book contributes to our understanding of how judicial power is constructed in the Global South. Third, it shows that these courts do not necessarily displace democratic politics, or elected policymakers; instead, they can create new political spaces devoted to special problems.

The Colombian Constitutional Court has decisively undertaken the role of guaranteeing the normative force of economic and social rights. It has devised several tools to that effect, among them a test to evaluate regressive measures. This chapter examines rulings that review statutory norms in the abstract, before arguments that denounce them as illegitimate retrogressions in the enjoyment of social and economic rights. These claims are assessed by applying what we call the “integrated regression test.” The chapter establishes the meaning, structure, operation and efficacy of this test, which uses proportionality analysis as an allocation method. It dissects how it operates to safeguard rights when their minimum core or preexisting associated benefits are withdrawn. The integrated regression test proves to be a strong and complex scrutiny, even if not completely unified in its use, with a wide range of singularities and a tendency to be more protective of social rather than economic rights.

Constitutional adjudication routinely works against the backdrop of the assumption of a functioning government. Courts dispose of individual cases by declaring a specific violation and issuing a specific remedy. They do not go beyond the individual case because, by design, the political branches – legislatures and executive branches – are supposed to protect, respect, and ensure basic rights in most cases that do not reach the courts.

However, this is not the case with massive and structural violations of rights. In peaceful times, massive violations of rights are usually not a product of malfeasance or bad faith; they are the result of precarious institutional capacity and dysfunctional policies, political processes, or systems of government. In other words, they are the consequence of specific instances of a lack of effective governance.

This chapter reviews Colombia’s political and economic history and several crises which led to the convening of a Constituent Assembly in 1991. The chapter reviews the legal and political basis for the Constituent Assembly as well as some of the pertinent debates, regarding the creation of a Constitutional Court. One main goal of the Constituent Assembly was to create a more inclusive society by making political institutions themselves more representative. The chapter then analyzes the elected and non-elected branches of government created by the 1991 Constitution as well as constitutional reforms since that time. This chapter concludes with a rich description of the Colombian Constitutional Court.

Recent scholarship has highlighted the theoretical possibility and examples of the tools of constitutional change being used “abusively,” in order to erode the democratic order. This chapter will explore the experience of constitutional backsliding in Colombia, and the response to those efforts by the Colombian Constitutional Court and other political actors. The chapter will explain the utility of a well-developed doctrine of unconstitutional constitutional amendment as a response to potentially abusive amendments such as term limit extensions. However, it will also highlight the dependence of such a doctrinal response on particular political conditions that often do not hold throughout Latin America.

This chapter examines Justice Manuel José Cepeda’s role as a towering justice on the Colombian Constitutional Court, arguing that he represents a particular type of impactful judge, i.e., a political-legal institution-builder. His core attributes have been a fusion of jurisprudential pragmatism and political skill, which he used over time to increase the power of the institution. These attributes focused Cepeda on issues that were otherwise undeveloped in the Court’s jurisprudence. For example, he paid close attention to the design of remedies, and perhaps his greatest contribution to the Court’s work were the monitoring mechanisms that he developed for mega-interventions dealing with internally displaced persons and health. Moreover, he constructed interventions in ways that built up political support for the Court while dampening the opposition that normally accompanies activism. His fusion of political and legal skill in protecting and increasing judicial power is seen from the standpoint of his entire career: as a young lawyer involved in designing the Court through the 1991 Constitution, as a justice on the Court itself, and as an adviser and academic after his term ended.