Building judicial power in Latin America: opposition strategies and the lessons of the brazilian case

Abstract

Studies on courts in Latin America have increasingly focused on high court behavior and its relationship with governments in explaining patterns of judicial activity In this paper, we argue that understanding transformations in patterns of judicial politics over time requires us to consider processes of building judicial power as relatively independent from the actual use of judicial power. Moreover, while the relationship between judges and the incumbent government is decisive in shaping the strategic incentives around the use of judicial power, the opposition plays a more crucial role in the building of judicial power. We illustrate these propositions in a brief discussion of all the Mandados de Segurança (MS) filed before the Brazilian Supreme Court between October 1988 and May 2016. The dynamics around these lawsuits illustrate a kind of partnership between the court and the opposition that might create more favorable conditions for the future judicial exercise of power.