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Opinion: Want to reform the Supreme Court? These strongmen can show a thing or two
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Mac Margolis is a longtime reporter, columnist and scriptwriter covering Latin America, and author of The Last New World: the Conquest of the Amazon Frontier.
When the political opposition, independent election observers and scores of global leaders cried foul over Venezuela’s July 28 elections, plunging the country into turmoil, self-proclaimed victor President Nicolás Maduro knew just what to do. He pledged to “throw myself before justice.”
In any democracy worthy of the name, that would be the honorable thing to do. Except this was the Bolivarian Republic, where 25 years of authoritarian catch and kill have rendered the Supreme Court and virtually all other governing institutions appendages of the man in the Miraflores Palace.
Caracas is a long way from Capitol Hill. But before the champions of sweeping Supreme Court reform in the U.S. fall too far down that rabbit hole, they would do well to consider the record of nations that have been there. Look no further than Latin America.
Honors to Venezuela, where court packing and purging, among other variations of institutional reengineering, have been mainstays of the quarter-century scandal known as Chavismo. That’s shorthand for the state-sponsored assault the late Hugo Chávez, Venezuela’s president from 1999 to 2013, waged on constitutional checks and balances that not only gutted one of South America’s flagship democracies but also hastened the worst economic collapse in the Americas in recent memory.
It would be silly to conflate the authoritarian designs of strongman Chávez and his protégé and successor Maduro with the campaign to curb U.S. judicial excess. Indeed, last month, President Biden plausibly called for a code of conduct and term limits for the Supreme Court after head-turning ethics controversies and the high court’s apparent jag to the right under former President Donald Trump. Yet it’s worth recalling that Venezuela’s descent into rank illiberalism also started with the best of democratic intentions.
Rewind to 1999, when the recently seated President Chávez convened a constituent assembly to rewrite the constitution with guarantees of an independent judiciary and an autonomous Supreme Court. The new charter even included a fail-safe empowering congress, by supermajority, to disbar any high court justice found to have committed “serious offenses.” Human Rights Watch’s Americas director at the time, José Miguel Vivanco, described that initiative as one meant “to enshrine the principle of judicial independence in a new democratic constitution.”
That lullaby ended with a pen stroke in 2004 when Chávez’s congressional majority supersized the Supreme Court, expanding the high bench from 20 to 32 members, a move tailored to keep the courts safe for autocracy.
Indeed, there is a straight line from that top-down judicial reset to the risible results of last month’s presidential election that Maduro claims to have won, after disqualifying the leading opposition contender and ignoring calls to publish the electoral tallies. All of this with the imprimatur of a domesticated legislature, the captured National Electoral Council and a packed Supreme Court. Never mind that all credible exit polls and vote tallies posted by Maduro’s challengers point to a landslide victory by opposition candidate Edmundo González.
Venezuela has company. Since 2010 a roster of Latin American elected “antidemocrats” — in Mexico, Nicaragua, Peru, Bolivia and El Salvador — has elided, eroded or simply flouted constitutional constraints on executive authority, according to V-Dem, a group at Sweden’s University of Gothenburg that monitors democracies worldwide. Regulatory agencies, congress, the central bank and public auditors — all were valid targets. Especially the courts.
“Independent and empowered courts are a blockage to elected anti-democrats who seek to control other institutions with a veneer of legality,” V-Dem concluded. “With the court on their side, the constitutionality of their undemocratic moves is undisputed.”
Few caudillos, as regional strongmen are known, understood this better than El Salvador’s Nayib Bukele. In 2021, the soi-disant “world’s coolest dictator” (since rebranded as the “philosopher king”), leveraged his rock-star approval ratings to forcibly retire one-third of the country’s magistrates. His congressional allies went on to approve summary dismissal of all sitting judges aged 60 or over and swap out all the justices on the Constitutional Court. The rationale? To “purify” the judicial system and clear the way for Bukele to seek a constitutionally barred reelection.
Even the more democratic-minded leaders have succumbed to overstepping. Brazil’s Luiz Inácio Lula da Silva styled his return to the presidency in January 2023 as a mandate to rescue democratic institutions. Now he routinely threatens one of those institutions, the Central Bank, for keeping interest rates high amid his government’s fiscal incontinence. Then there’s Mexico’s outgoing populist and wannabe caudillo, Andrés Manuel López Obrador, who is pushing a crowd-pleasing law to require all judges be elected by popular vote, including to the Supreme Court.
By 2023, Latin America and the Caribbean had fallen for eight years running on the Economist Intelligence Unit’s annual Democracy Index, which tracks democratic resilience globally.
If there is a caveat for the alpha nation in the Americas, it is that, once indulged, the temptation to meddle with courts, justices and regulatory agencies is hard to resist, and can easily give way to overreach and revanchism. Even the hemisphere’s headline antidemocrats prefaced their postelection power grabs with perfectly salutary calls to correct course, root out corruption and preempt abuse.
When talk of overhauling the U.S. Supreme Court resurfaced four decades ago, the then-ranking Democrat on the Senate Judiciary Committee dismissed it as a “a bonehead idea.” Today, Biden is an enthusiast, as are his chosen successor, Vice President Harris, some 30 fellow Democrats and a public opinion groundswell.
Tellingly, the same survey that tracked Latin America’s slide into illiberalism also painted the U.S. as a “flawed democracy.” The jury is still out on how that will turn out on both sides of the equator.
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