Ruibal 1

Self-Restraint in Search of Legitimacy: The Reform of the Argentine Supreme Court
Author(s): Alba M. Ruibal

Reviewed work(s):
Source: Latin American Politics and Society, Vol. 51, No. 3 (Fall, 2009), pp. 59-86
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Self-Restraint in Search of Legitimacy:
The Reformof the
Argentine Supreme Court
Alba M. Ruibal
ABSTRACT
In 2003, the Argentine executive a process of Supreme

promoted
Court reform that entailed limitingpresidential attributions in the
selection of justices. Then the renewed court implemented changes
to itsinternal procedures that increased its own accountability
mechanisms. The literature on the politics of institutional judicial
independence in Latin America has developed two explanatory
models: one presents reforms as an insurance the other as a
policy,
consequence of divided government. Both perspectives conceive of
reforms as a result of and as a way to limit
political competition
other actors, the future government in the first case, the party in
power in the second. This study, by contrast, explains the Argen

tine reforms as movements of strategic self-restriction, designed to
build legitimacy and credibility,for the government and the court,
respectively, in a context of social and institutional crisis and pres
sure from civil society.
the aftermath of one of the deepest social and political crises in

In Argentina, in June 2003, President Nestor Kirchner initiated a process
of Supreme Court reform that implied, overall, a restriction on the exec
utive's discretion in the appointment of justices. Reforms included new
mechanisms of transparency and participation of civil society in the
nomination process, a partial renovation of the court, and a reduction
in its size. After its reconstruction, the Supreme Court, which had gone
through the worst crisis of credibility in its institutional history, imple
mented changes that increased itsown accountability by including more
transparency and public participation in its internal procedures and
reduced its jurisdiction in order to adjust to its constitutional role. Both
types of reforms had been proposed and demanded by civil society
organizations as a way to strengthen the independence and institutional
standing of the Supreme Court, in the context of the country's economic
and political breakdown of 2001-2.
Scholars and reformers consider judicial empowerment and auton
omy as critical institutional components of the processes of democrati
zation and rule of law-building in Latin America. However, beyond the
consensus about the normative justification of judicial in
independence
the region, a theoretical as well as practical problem iswhat types of
? 2009 University ofMiami

60 LATIN AMERICAN POLITICS AND SOCIETY 51: 3
factors can break the historical subordination of courts and generate

incentives for institutional change. The literature on the politics of judi
cial reforms in Latin America has developed two main explanatory
models that account for these processes. Ithas been argued that judicial
reforms come about in the presence of electoral incentives thatmotivate
reforms as an insurance policy (Finkel 2004, 2005; Chavez 2003, 2004a,
b), or in contexts of divided government (Beer 2006; Chavez 2003,
2004a, b). In both types of explanation, incentives for promoting judi
cial reform depend on political competition, and judicial autonomy
grows when one party tries to limit the power of another.
This study argues that theArgentine Supreme Court reform cannot be
understood as a way to restrict the exercise of power by other political
actors. Instead, this process of institutional change was a movement of
self-restriction in order to build legitimacy and credibility, for the govern
ment and the court, respectively, in a context of social and institutional
crisis and pressure from civil society. Through the analysis of this case,
this study shows how, in a contemporary process of judicial reform, the
strategic self-limitation of power through institutional reform can be con
ceived of as a means to increase power. It also shows that the enhance
ment of a court's accountability can be considered as a way to increase
its legitimacy and thus its institutional authority and independence.
The article begins by addressing the two main arguments developed
so far by the literature on the microfoundations of judicial reform in
Latin America, and proposes an additional account, based on the search
for legitimacy as a motivation for institutional change. Itoutlines the key
factors that contributed to the crisis of legitimacy of the Supreme Court
in Argentina and presents the content of reforms implemented since
2003- Then it analyzes the political factors of this reform process and
explains how the crisis and the interaction between the government and
citizens influenced both the feasibility and design of reforms.
Explaining Judicial Reform in Latin America
A broad range of studies on the recent wave of judicial reforms in Latin

America has emphasized the external dimension of these processes and
has attributed the obstacles or circumstances favorable to the implemen
tation of reformprograms to factors such as the role of international finan
cial institutions (Biebesheimer 2001; Sarles 2001), problems inherent in
institutional transplantation (McAuslan 1997; Thome 1997; Trubek 2003),
the international strategies of local actors (Dezalay and Garth 2002), and
the existence of domestic constituencies for international reform initiatives
(Biebesheimer 2001; Dakolias 2001; Hammergren 1998).
Another growing body of literature on themicrofoundations of judi
cial reforms in the region has highlighted local political conditions, par

RUIBAL: THE ARGENTINE SUPREME COURT 61
ticularly the role of national political elites in processes of structural

judicial independence (Acuna 2002; Beer 2006; Chavez 2003, 2004a, b;
Finkel 2004, 2005; Fix Fierro 2003; Inclan 2003; Magaloni 2003; Negretto
and Ungar 1997; Prillaman 2000). These studies share the central
assumption that judicial reforms take place when strategic political
actors find incentives and resources to promote them. However, they
differ principally on the type of conditions and incentives thatmotivate
rational politicians to promote institutional changes leading to judicial
independence. This article builds on such an approach, but presents an
account not yet considered of the circumstances and motivations for
judicial reform in Latin America.
The two main microlevel explanations of judicial reform in Latin
America focus on the interaction between political elites, and have devel
oped models that identify, respectively, the need for an "insurance
policy" and the existence of divided government as fundamental condi
tions for reform.1As to the firstperspective, Finkel (2004, 2005) argues
that the probability of reform increases when the ruling party faces the
possibility of losing power in the next elections, and decides to promote
judicial independence as an insurance policy. This account, which has
been used to explain judicial reform in Argentina and Mexico, assumes
that a more independent judiciary reduces the risks for the ruling party
in case it becomes the opposition, since a more autonomous judicial
power can prevent the future authorities from changing the rules of the
political game at will. From this point of view, reforms depend on the
ruling party's decision to constrain the options of the next government,
and theymay entail present costs but future gains for the reformist party.
With regard to the second perspective, Chavez (2003, 2004a, b)
claims that reforms leading to judicial independence are the result of the
balance of power between two or more political parties, in contexts in
which none of them is highly disciplined or holds simultaneous control
of the executive and legislative branches. Through the analysis of
processes of judicial independence in Argentina, Chavez asserts that
interparty competition "provides incentives for presidents to develop a
meaningful system of checks and balances, which includes a judiciary
that can check the executive power" (2004b, 451).
According to these two models, judicial empowerment and auton
omy emerge in contexts inwhich a political party intends to check the
power of another; that is, the future government in the firstcase and the
party in power in the second. Both analytic views are based on the
explanatory power of interparty competition?by way of fragmentation
or alternation in power?as the decisive factor of institutional change.
In fact, Finkel addresses other variables, such as international demands
and the possibility of using reform as a bargaining chip, thatmay affect
the initiation phase of reforms, but argues that the probability of imple

mentation, which is, according to Finkel, "the crucial determinant of

judicial reform," increases "as the ruling party's probability of re-election
declines" (2004, 56). Chavez also considers other factors beyond politi
cal fragmentation, particularly socioeconomic variables (2003) and the
presence of a reformist coalition formed by civil society groups, the
media, and international organizations (2004a). In her explanation,
however, the role of these factors is to contribute to the fragmentation
of power, which is, as she explains, "the operative variable" (Chavez
2003, 423) in processes of judicial independence. Thus, in these types
of explanations the pivotal incentives for reform depend ultimately on
the politicians' position in the division of power scheme. As a conse
quence, the purposes and goals of reforms are predetermined accord
ing to the position of political actors in that scheme, assuming that they
will use reform as a means to limit the power of their opponents.
The Supreme Court reform initiated inArgentina in 2003, however,
cannot be interpreted as a strategy to curb other political actors in a
party competition game, and civil society played a decisive role both in
the structure of incentives and in the design of the reform. This makes
room for another account, which can be considered as a complement
to existing explanations of judicial reform processes in Latin America.
On the basis of the Argentine case, this study argues thatwe can
also expect institutional changes leading to judicial independence when
authorities that need to build legitimacy and social support for their
political programs decide to restrict their own power through reforms.
Motivations for this kind of governmental behavior can emerge from
pressure by significant actors, particularly historical opportunities that
modify the elites' structure of incentives. They may emerge, for exam
ple, in contexts of institutional crisis that foster the coordination and
influence of civil society's demands.
The core argument, following Holmes's theory of the origin of the
rule of law, is that an executive power can trade judicial independence
for legitimacy and political support. Under the same logic, it is argued
that a judicial organ such as the Supreme Court may choose to increase
its own mechanisms of accountability in order to gain credibility and
institutional standing. Holmes (1997, 2003) explains the development
of constitutionalism and political liberalism as movements of strategic
self-restriction by powerful rulers who need to gain the cooperation of
relevant social actors for their own political projects. From this per
spective, the limitation of power in certain spheres is seen as a neces
sary step to "get full control of others" (Holmes 2003, 26). In this frame
work, social cooperation can ultimately be translated into electoral
support, but it alludes specifically to the search for consensus and con
ditions for governance and not to expectations about short-term elec
toral gains.

In contrast with explanations focused on party competition, in a

rationale based on self-restraint and the search for legitimacy, the inter
ests and goals of the relevant agents in judicial reform are not prede
termined by the actors' position in the division of power. For this
reason, in order to explain a reform as a movement of strategic self
restraint, it is necessary to look at the particular configuration of incen
tives thatpolitical elites confront in each setting. In this sense, given that
political liberalization is not the only way to obtain social cooperation
(Kitschelt 2000), it is necessary to look at the specific relation between
authorities and citizens in specific contexts, in order to explain why
powerholders would search for social support by thatmeans. Whether
political elites will decide to grant judicial independence in their search
for social cooperation and legitimacy depends, fundamentally, on the
type of social pressure and demand for reform that emerges in particu
lar settings, as well as on the type of political strategy that a government
pursues in order to build consensus and power.
The Argentine case indicates that coordinated social demands for
institutional change in a context of severe institutional Supreme Court
delegitimation may provide incentives for political elites to initiate
reforms that entail governmental self-restriction. It also highlights the
importance of rights advocacy organizations, which, at certain junctures,
may become a significant factor to advance not only a court's agenda
on rights (Epp 1998) but also a process of court reform. However, as
Geddes warns in her 1994 work on administrative reform in Latin Amer
ica, social demands for reform involve a collective action problem,
which manifests itself in the difficulty of translating latent popular griev
ances into compelling political demands. The problem, then, is how
social groups can solve their coordination problems and affect the struc
ture of incentives of political elites. In this regard, various studies
(Acuna 2002; Holmes 2003; Weingast 1997; Negretto and Ungar 1997)
have indicated the need for a drastic change in external events that
modifies the former pattern of institutional subordination and allows for
a new equilibrium, closer to the rule of law. In this sense, the analysis
of the role of historical opportunities (Acuna 2002) is particularly rele
vant for the explanation of judicial reform processes in Latin America
and the Argentine reform in particular. In his analysis of the feasibility
of these processes in the region, Acuna points out that given the com
plex political dynamics involved in these types of reform and the low
level of citizen participation in them, we should expect a more deter
minant role of unforeseen events, such as theArgentine crisis in 2001-2,
that could change the "suboptimal stability that characterizes the provi
sion of justice in Latin America" (2002, 17).
However, a crisis cannot by itself explain a reform leading to judi
cial independence, given that a critical event can produce opposite

results (Acuna 2005). As the Argentine case illustrates, a crisis can

become an influential factor in a reform process when it involves and
affects the legitimacy of courts and allows for the emergence of social
demands for institutional change. By making way for the coordination
of reform-oriented social action, a crisis may allow latent interests to
become compelling claims. In such a context, political elites that seek
to build legitimacy and to reconstruct their linkwith citizens may find
incentives to attend to those demands.
From this perspective, civil society may not only contribute to frag
menting political power and strengthening the opposition in its claim for
judicial independence, as in the divided government rationale, but itcan
generate incentives and offer resources for the executive to promote a
reform that entails governmental self-restriction. In this way, the ulti
mate incentives for reform are not predetermined by the distribution of
power among elites but are configured by the relationship between
politicians and social groups in specific historical instances.
Thus, in contexts of institutional crisis that involve the delegitimiza
tion of the judiciary and that propitiate citizens' demands for institu
tional change, political actors that need to build legitimacy and condi
tions for governance may find incentives to promote judicial
independence.2 Similarly, in such contexts, courts may findmotivations
to promote judicial accountability in order to foster their institutional
legitimacy. In such cases, given that reforms imply a restriction on the
executive, opposition parties have incentives to support institutional
change, and justices have less leverage to resist court renewal. In this
framework, because incentives do not depend on political competition,
attention to social claims may trigger reforms under both divided and
unified government.
This approach allows us to explain the process of reform initiated
in Argentina in 2003, inwhich social demands had influence on the
incentives for reform, as well as the shape and content of institutional
changes. Indeed, a distinctive aspect of these reforms is that their
content and framing were not the result of elite projects, like the judi
cial reform cases studied under the two rationales based on political
competition and other reform processes in Latin America. As
explained by Incl?n (2003), in the case of the Mexican judicial reform

of 1994, the content of changes was designed by a small and insu
lated elite team. Grindle (2000) also shows that other types of insti
tutional reforms in Latin American countries emerged as a product of
a small elite group and were not pushed on the government by civil
society's initiatives. In contrast, the reform of the Argentine Supreme
Court was a result of proposals designed by nongovernmental organ
izations, and the reform process was marked by the interaction of
elites and civil society.

An examination of the sources of the court's delegitimation allows

us to understand the nature of institutional changes thatwere proposed
and undertaken, which were related to the court's autonomy in regard
to political power and to its jurisdiction and internal functioning.
The Crisis of Legitimacy and the

2003 Reform
The Argentine constitutional system confers structural independence
and a significant institutional role to the Supreme Court (Miller 1997;
Nino 1993). Nevertheless, the country's political process during the
twentieth century, signaled by successive coups d'etat, excesses of the
executive power in democratic periods, and the role the court itself
assumed in relation to that process, affected the court's stability and
autonomy and weakened its institutional standing.3 During the 1990s,
under the government of President Carlos Menem (1989-99), those fac
torswere strongly exacerbated; and in the context of the economic and
institutional crisis of 2001-2, the Supreme Court was singled out as a key
actor among those responsible for the country's breakdown.
Overall, the main factors that the literature identifies as historical
causes of the erosion of the court's independence and institutional
legit
imacy are the lack of secure tenure for justices and the consequent
instability in the court's composition (Badeni 1999; Carrio 1996; Gar
garella 2002; Zaffaroni 1994), the absence of effective controls and
objective criteria in the designation of judges (Badeni 1999; Brinks
2005), the court's legitimation of de facto powers and legislation prom
ulgated under dictatorial governments (Cayuso and Gelli 1988; Gar
garella 2004), and its legitimation of the delegation of power to the
executive branch during democratic periods (Nino 1993; Larkins 1998).
These aspects allude to an almost permanent problematic relationship
between the court and the political system. But the Argentine case also
draws attention to another set of factors that have helped to undermine
its credibility and legitimacy. One set of factors is related to the lack of
transparency of the court's internal operating procedures.4 The other is
the illegitimate expansion of the court's jurisdiction in the 1990s (Carrio
1996; CELS et al. 2003; Sag?es 2005).5
Following the transition to democracy in 1983, the judicial power
became an increasingly relevant actor in life
Argentina's political
(Smulovitz 1995; Zaffaroni 1994). One of the main accomplishments
attributed to President Raul Alfonsin's term (1983-89) was to appoint a
Supreme Court composed of judges with highly respected professional
careers and diverse political affiliations (Larkins 1998; Prillaman 2000).
In addition, the decisions of that court
regarding the protection of fun
damental civil rights and liberties, in particular those related to consti

tutional guarantees in criminal processes (Carri? 1996; Gargarella 2004),

contributed to its legitimacy.
However, that short time in the Supreme Court's institutional history
was followed by one of the periods inwhich the court's functioning was
most questioned. At the beginning of his government, President Menem
promoted the court's expansion from five to nine members, which
allowed him to appoint a majority of judges; this, in turn, led to a court
thatwas one of themost deferential to political power ever in the coun
try(Acuna 2002; Brinks 2005; Carrio 1996; Larkins 1998; Miller 1997) and
one of the least independent courts in Latin America (Helmke 2003).
During Menem's government, the court backed the overreach of the
executive power, delegating to it powers formerly attributed to other
branches and, in many cases, suspending constitutional rights under
arguments of economic emergency (Carrio 1996; Larkins 1998).
Consequently, after 1997, the situation of the Supreme Court
became one of the main issues in the 1999 presidential electoral cam
paign. Especially after the revelation of corruption scandals that
involved Supreme Court justices, themain opposition leaders proposed
changes to the court {La Nacion 1997a, b). The center-left coalition that
won the election (the Alliance for Justice, Work, and Education, or
Alianzd) had placed the renewal of state institutions, and particularly
the independence of the judiciary, at the center of itspolitical platform.
During its administration, presided over by Fernando de la R?a
(1999-2001), however, the judicial power was not reformed in any sig
nificant way. The Supreme Court systematically endorsed the decisions
of the executive and also responded to de facto powers, especially to
con
ex-president Menem, even when that entailed flagrant violations of
tract rights (Acuna 2002) or the constitution (Gargarella 2002).
As a result of these concurrent factors, by the end of the 1990s, the
Supreme Court went through themost serious crisis of legitimacy in its
institutional history (Prillaman 2000; Sabsay 2003), and in the context of
the political and economic crisis of 2001-2, itwas one of themost-ques
tioned institutions.
In 2002, under the provisional government of Peronist president
Eduardo Duhalde, an unprecedented conflict between the political
power and the court took place (Acuna 2002). On February 7, 2002, the
government launched an initiative to impeach all court members {La
Nacion 2002a). But the court threatened to declare unconstitutional the
confiscation of bank deposits and their compulsory conversion into
local pesos, the so-called corralito, a process decreed by President De
la R?a on December 1, 2001, and a main pillar of Duhalde's economic
program. As a result of this conflict, the government interrupted the
process on October 10, 2002 (La Nacion 2002b), and the
impeachment
court was not changed. Furthermore, when Duhalde had the opportu

nity to nominate a new candidate for the court, he chose a member of

his political faction, who was appointed through a questionable desig
nation process (Poder Ciudadano 2003a).
Eventually, in the aftermath of the crisis, President Kirchner initiated
a reform that included new mechanisms of publicity, civil society par
ticipation in the selection of justices, and a partial replacement of the
court. Subsequently, in 2006, Kirchner promoted the reduction of the
court's size.
Kirchner took office on May 25, 2003, and during the firstdays of
his term instructed his party's national deputies to initiate the impeach
ment process for some of themore controversial Supreme Court justices,
identified with the so-called Menemist majority on the court. At the
same time, the executive introduced, through Presidential Decree No.
222/03, June 19, 2003, a new procedure for the nomination of Supreme
Court justices, which was later extended to the nomination of judges on
lower federal courts and members of the Public Ministry (Presidential
Decree 588/03, August 13, 2003). The new procedure limited the exec
utive's discretion to choose candidates for the court through new mech
anisms of disclosure and public scrutiny of the nominees' professional
and ethical background, as well as through new formal mechanisms for
civil society to express its opinions and objections about them.6 The
decree also included basic conventional criteria that the candidates
should comply with and established a series of stages and time periods
for the nomination process.7 Shortly after the executive initiative, on July
2, 2003, the senate reformed its own internal regulations regarding the
confirmation of Supreme Court nominees, introducing more trans
parency and public participation in that process.8
Confronting these initiatives by the political powers, three of the
justices who had belonged to the Menemist clique resigned, and two
others were removed at the end of impeachment trials.9On the basis of
the new procedures, four new justices were appointed to the court.10
Their approval followed an intense public debate over the characteris
tics of the candidates proposed by the executive power, which implied
a greater control of the designation process by new actors (ADC 2003).
On the other hand, the new justices were not identified with any polit
ical faction or interest group close to the government (Gullco 2005);
they had ample professional credentials; and they proceeded to demon
strate autonomy with respect to political power (Brinks 2005).
The new designations still left two vacant seats on the court.11 The
president was severely criticized because, over several months, he made
no decision about these vacancies (CELS et al. 2006; La Nation 2006a,
d). On the one hand, this lack of definition allowed him to keep con
trol over possible nominations and changes in the court at any time. On
the other hand, if the president had decided to resolve this situation by

nominating two more justices, six justices would have been appointed
during his term in office. This circumstance posed doubts about the
court's prospects for impartiality and the consolidation of its legitimacy.
For that reason, as a solution to the dilemma, NGOs, opposition parties,
and the justices themselves asked to reduce the court's size {P?gina/12
2006). Finally, in 2006, the government decided not to appoint new jus
tices and to promote the reduction of the court.12
The Supreme Court itself, after its restructuring, implemented a
series of changes oriented toward increasing its own accountability
mechanisms.13 It also aimed to promote the participation of civil society
in its decisionmaking processes by formalizing public hearing proce
dures (Acordada 30/2007, November 5) and amicus curiae submissions
Acordada 28/2004, July 14; Acordada 14/2006, June 20.14 The court fur
ther reduced its jurisdiction in order to adjust to its constitutional role.15
The two types of reforms described?those promoted by the polit
ical powers and those implemented by the court itself?had been pro
posed by civil society organizations as complementary components of a
comprehensive plan aimed at fostering the court's autonomy and insti
tutional standing (CELS et al. 2002a, b, 2003). Studies that evaluate the
implications of these institutional changes argue that so far, they have
had a positive impact on the court's independence (Brinks 2005) and
legitimacy (Litvachky and Zayat 2007).
Political Process of the Reform
Explanations based on the influence of external factors are not suitable

to account for the recent process of Supreme Court reform inArgentina.
In 2002, under the provisional rule of President Duhalde, pressure by
international organizations, particularly the International Monetary Fund,
to generate legal certainty for trade and investors was stronger than ever
before {La Nation 2002a). At that time, the court was one of the most
serious threats to economic stability because it could declare that freez
ing bank assets was unconstitutional. Nevertheless, the government
backed down from its intention to remove themembers of the Supreme
Court, given its lack of incentives and resources to confront the court's
resistance. Eventually, reforms implemented by Kirchner took place
without pressure or support from international actors.
Nor can the reform process be understood through existing ratio
nales based on party competition. In particular, models that focus on
electoral incentives and divided government cannot explain why a pres
identwho had just started his term in office, and therefore did not face
electoral uncertainty or majority opposition in either of the legislative
chambers, initiated a reform that limited his own power in the nomina
tion of Supreme Court judges. In 2003, elections were, in effect, in the

distant future, and the Partido Justicialista (PJ) in power controlled 50.2
percent of the seats in the lower chamber (the second political force,
the Union Civica Radical, UCR, had 17.1 percent) and 57.7 percent in
the senate (UCR had 19.7 percent). Moreover, though the PJwas divided
into different factions during the electoral race, neither force had a
majority in either chamber; and as explained by Levitsky and Murillo,
during the firstweeks of Kirchner's government, "the PJ's legislative fac
tion reunified and the vast majority of party bosses [. . .] came together
behind a new party leadership" (2003, 164).
These models also fail to explain why the same president, who, in
the midterm elections of 2005, could strengthen his support base in
Congress (Calvo 2005), and who had a strong probability of winning
presidential and legislative elections in 2007 (Clartn 2007), decided in
2006 to promote the reduction of the number of Supreme Court mem
bers when he could have chosen legally to fill the vacant seats.
In the Argentine case, the executive power, and the president in
particular, was a decisive factor in the process of Supreme Court reform.
What makes this movement most notable is that in other instances,
Nestor Kirchner had been questioned for his hegemonic practices and
specifically for his attempt to control the judiciary at different levels.16
In particular, he was denounced for the subordination of the judicial
power during his government of the province of Santa Cruz
(1991-2003), and as president he promoted a reform of the National
Judicial Council that allowed the ruling party to be overrepresented in
that organization (Pagina/12 2005b).17
Even so, at the beginning of his administration, Kirchner made the
court reform a central issue for his government, and he backed down
from his own intention to manipulate the court's composition later
on.18 As noted, he was not motivated by external pressure or by polit
ical competition. Instead, the political crisis of 2001-2 and the response
of social actors in that context explain the change in the structure of
incentives that had kept the court subordinated, as well as the execu
tive's motivation to promote reform in order to obtain consensus and
legitimacy.
The Crisis as Strategic Opportunity
Argentine society had historically paid scarce attention to the composi

tion, decisions, and functioning of the Supreme Court (ADC 2004) and
had not considered it an institution that could be crucial for exercising
rights and checking political power (Carrio 1996; Cayuso and Gelli
1988). This situation changed after the crisis of 2001-2. The court
became one of the most criticized institutions, different social sectors
coordinated their demands for change in its composition, and various

70 LATINAMERICANPOLITICS AND SOCIETY 51: 3
NGOs elaborated reform proposals thatwere later implemented by the

three branches of government.
As noted, a context of crisis can lead to the opposite result; that is,
to the subordination of courts (Acuna 2005). This is what happened
after the hyperinflationary crisis of 1989, which motivated the early
transfer of power from Alfonsin to Menem. On that occasion, urgent
demands were made for economic stability while requests for account
ability and constitutionalization were downplayed (Peruzzotti 2002).
The context generated by that crisis has been identified as one of the
factors that allowed for the concentration of power during Menem's
administration and that made
the emergence of so-called delegative
democracy (O'Donnell 1994) possible inArgentina. But the 1989 crisis
did not follow a period of widespread governmental corruption, and
during Alfonsin's government the court was not delegitimated; on the
contrary, itwas composed of respected justices, and itdeveloped a pro
gressive jurisprudence on rights. So at the beginning ofMenem's admin
istration, demands for a more effective executive that could manage the
economic crisis were not tempered by concerns about the independ
ence and legitimacy of the court. The court, moreover, was not a truly
visible actor inArgentine political life.This explains why its scandalous
packing at the beginning of Menem's government (Verbitsky 1993) was
not massively contested.
During the crisis of 2001-2, by contrast, even the claim for changes
in economic conditions was related to demands for transparency {La
Nation 2005b), and the Supreme Court was particularly in the spotlight.
An official of the Association for Civil Rights (ADC), an NGO, observed
that since the crisis of 2001, "there was more awareness of the impor
tance of institutions. People started thinking that even their economic
welfare depended on institutions" (Gullco 2005). This explains why a
president who needed to build political power and to restore linkswith
the citizenry could see the court's reform a means to obtain social coop
eration and legitimacy. Two idiosyncratic characteristics of this crisis
help explain why this context generated incentives for reform.
In the firstplace, the economic crisis detonated inDecember 2001
furtherdeepened an existing crisis of political representation, which had
been evident in themidterm elections inOctober (Mustapic 2002), and
triggered a social insurrection that has been characterized as "amassive
civic rebellion against the entire political elite" (Levitsky and Murillo
2003, 153). This led to the resignation of President de la R?a and a suc
cession of three different replacement presidents in just a few days.
Duhalde, the last of them, was elected by Congress on January 1, 2002
as a provisional president for two years, but had to call for early elec
tions inApril 2003- Thus, this crisis revealed that threats to political elites
and expectations for social change were not determined by the pres

ence of themilitary or guerrillas, as in the context of the reforms stud

ied by Geddes (1994). Instead, social discontent and contestation,
expressed by looting, riots, picketing, neighborhood assemblies, and
other forms of popular organization and collective violence (Auyero and
Moran 2007), became effective threats to political stability.
Second, an unprecedented feature of this crisis was the targeting of
the Supreme Court as one of the most contested state powers
(Pagina/12 2002) and a main focus of social protest (Acuna 2002;
Clarin 200Id). Two events exacerbated the court's delegitimation in this
context. At the end of 2001, public opinion was greatly irritated by the
court's decision to free ex-president Menem, who was in pretrial deten
tion on a criminal charge (Acuna 2002).19 But themore important factor
was the court's support of the confiscation of bank deposits. At that
time, the generalized outcry against public officials included politicians
as much as court
justices.20
On December 28, 2001, the court issued its firstverdict supporting
the government's confiscatory policy {Clarin 2001c). The same day, the
firstof a sequence of massive protests at the entrance to the Supreme
Court building took place. The increasing public calls for impeachment
of justices did not stop even when, on February 1, 2002, the court
declared the confiscation unconstitutional, reversing its own decision
(Perez 2002). The court's retreat was seen as opportunistic (Sabsay
2003), since it was a clear reaction to the imminent initiation of
impeachment proceedings. Popular response on that occasion reflects
the public image of the court and the social perception of its illegitimacy
beyond a particular decision that could momentarily favor the same
groups thatwere protesting.
The crisis of December 2001 therefore contributed to the visibility of
the court and made it,for the firsttime, a concern of society at large. This
occurred after a decade characterized by rights curtailment and govern
ment corruption with which the court had been identified, and the
court's behavior during the crisis contributed further to itsdelegitimation.
These precedents explain why, in this crisis, people demanded
more transparency and accountability, and particularly a more inde
pendent Supreme Court. In this regard, a director of the Center for Legal
and Social Studies, an NGO, remarked that "the Argentine judiciary had
never thought of itself as part of the political system, and people never
saw itas part of that system. In the crisis of 2001 the court started to be
seen thatway, because itwas so closely identified with political power"
(Pochak 2005). In a similar vein, the cosecretary of the Argentine Judi
cial Federation explained that social protest focused on the Supreme
Court because "the court could have restrained corruption and the dis
mantling of social rights during the 1990s, but instead it said that the
economic model was above the Constitution" (Mendivil 2005).

The crisis not only triggered massive protests against the court but
also propitiated the coordination and empowerment of more institu
tionalized social actors, which developed technical reform proposals,
most of which were later implemented by the government and by the
court itself. After December 2001, three principal social movements
emerged in connection with demands for reform of the judicial system
and the Supreme Court in particular. A professional association, the
Asociacion de Abogados Laboralistas (Labor Lawyers' Association),
convened massive protests that demanded the removal of Supreme
Court members. In a short time, the protest movement produced a
coalition of diverse social organizations that, among other actions, in
June 2002 organized a symbolic "ethical trial of the Supreme Court"
(FJA 2002).21 Second, in December 2001, the government of President
De la R?a, the Catholic Church, and the United Nations Development
Program (UNDP) convoked different sectors in an attempt to achieve
social conciliation (Mesa del Di?logo Argentino 2002). After February
2002, under the provisional presidency of Duhalde, this initiative
included a working group on judicial reform, which was joined by
diverse actors and organizations related to the judicial field (Garavano
and Palma 2002). Third, a group of NGOs whose work was oriented
toward the defense of rights and the promotion of transparency in gov
ernment gathered in January 2002 and developed a comprehensive
program for Supreme Court reform under the motto A Court for
Democracy (CELS et al. 2002a, b, 2003).22
The reform proposals produced by these organizations?mainly by
the so-called coalition A Court for Democracy but also by other
groups?had a direct influence on the kind and shape of reforms imple
mented after 2003. Indeed, the idea that a change in the court's com
position should involve the president's self-restriction on nominating
justices, as well as the reforms to the senate confirmation process and
changes related to the Supreme Court's internal procedures, had been
put forward by three consecutive documents titled "A Court forDemoc
In addition,
racy" I, II, and III, respectively (CELS et al. 2002a, b, 2003).
the project of reducing the court's competences, which the court imple
mented after its renewal, had been developed by a wide range of civil
a
society organizations gathered at the Colegio P?blico de Abogados,
in 2002 (CELS 2004).
lawyers' professional association in Buenos Aires,
As a result of the dynamics of this crisis, popular contestation
and among the
emerged as an influential aspect of the political process,
main grievances of social movements and NGOs was the need to reform
the court. The coordination of social demands for institutional change
and the empowerment of social actors in that context generated incen
tives for political leaders to promote reform as a way to achieve social
support and legitimacy.

The Executive's Strategy: The Search for Legitimacy

Through Reform
The election of Nestor Kirchner as president inMay 2003 brought about

the normalization of a political crisismarked by an acephalous executive
power in December 2001, and put an end to a year and a half of an
interim government designated by Congress. Nevertheless, the delegiti
mation of party politics produced during the previous years and particu
larlyduring the crisis, along with Kirchner's election with only 22 percent
of the vote?the lowest result obtained by a president in Argentine his
tory?contributed to a context of institutional vulnerability and to expec
tations that he would be a weak president (Levitsky and Murillo 2003).
At the beginning of Kirchner's administration, the government was
indeed weak, but thiswas not due to divided government or to elec
toral uncertainty. At that time, the context of political and social turmoil,
stillmarked by a huge social contestation that had become a significant
threat to political stability since 2001, entailed a more urgent and press
ing challenge for the new government, which needed to build presi
dential authority and social support as conditions for governance. At
that juncture, the significant set of social demands related to increased
transparency in political institutions {La Nacion 2005b) generated strong
incentives for a recently elected executive to promote institutional
changes as a means to gain consensus and legitimacy.
In this context, the reform of the Supreme Court was presented as a
symbol of the new administration, part of a series of institutional changes
at the beginning of Kirchner's term aimed at cleaning up other ques
tioned institutions as well?in particular, the federal police, the armed
forces, and the national social security system for elderly people, PAMI
{La Nacion 2003d). Making the official announcement of the court
reform (Decree 222/03), the president framed its purpose in thisway:
"with this decision we initiate an irreversible path to reconcile politics
and institutions with society. We limit ourselves in order to end a
common practice under other governments, which needed subservient
courts in order to govern" {La Nacion 2003b). Shortly thereafter,a source
close to the presidency said that this reformwas one of the decisions by
which "the president has accumulated more power thanmany others in
a whole period of government" {La Nation 2003d).23 Itwas also men
tioned that Kirchner considered the removal of the Menemist justices
"one of the two or three decisions that contributed themost to consoli
date the positive public image of his government" {La Nacion 2006a).
With regard to the executive's motivation to initiate this reform
process, an ADC executive explained that this decision "was a matter of
political calculation. Kirchner took office with very little legitimacy, he
listened to the people's demands, and thought about which of them

could give him greater legitimacy with the least political cost" (Schvartz
man 2005). The executive director of the Institute of Criminal and Social
Comparative Studies (INECIP) expressed the belief that the president
"needed to enlarge his support base. He needed to identify certain ques
tions with high symbolic power. And he was very wise. A clear issue
was the Supreme Court. The new mechanism [for the nomination of jus
tices] was a signal for those who protested" (Ramirez 2005). An official
of the foundation Poder Ciudadano highlighted the notion thatKirchner
"needed to build a context of credibility and legitimacy that allowed him
to maintain a very high social consensus without taking care of other
urgent social problems" and added, "NGOs can benefit from that con
text to advance a reform" (Perez Tort 2005).
Because the reform was designed to build consensus and legiti
macy, and one of its crucial components was the executive's autolimi
tation, the role of civil society was not to offer resources to the opposi
tion in its effort to restrict a powerful executive, as in the divided
government rationale (Chavez 2004a). Instead, in this reform process,
NGOs worked alongside the government and played a determinant role
both in the incentives for reform and in its shape and content. The
process through which reform was achieved, marked by the govern
ment's approach to NGOs, which provided the framing and design of
institutional change, also indicates the executive's search for legitimat
ing sources for this reform and for his administration.
Immediately after taking office, the executive branch consulted the
group of NGOs that had developed the documents "A Court forDemoc
racy," and those documents were acknowledged as "the seed of the
presidential [reform] decree" {La Nation 2003e). With regard to the rela
tionship between political power and NGOs in the reform process,
CELS's adjunct director explained,
the document "A Court for Democracy" was not well

Initially,
known because itwas too institutional. Itwas [Minister of Justice]
Gustavo Beliz who rescued it; he contacted us. Two weeks after
office, he called us and said: "Iwant to use this document as

taking
an input formy work." Then a meeting at CELS took place. This
was a historical fact, because came to us. The Beliz came
they day
here, he told us that he wanted to start working on the decree,
which finallywas identical to what we had proposed. (Pochak
2005)
As we haveseen, the subsequent reform of the senate's procedure for

confirming justices was also proposed by the documents "A Court for
Democracy" (CELS et al. 2002b).
However, it is not simply widespread social support and civil soci
ety's proposals for institutional change that explain why an executive
may initiate a reform driven by the need for legitimacy. Pressure from

civil society becomes a relevant explaining factorwhen it is combined

with a government's resources and political standing. In effect, in 2002,
during Duhalde's administration, popular pressure for reformwas at its
highest, but the government failed to reconstitute the Supreme Court.
Without distinguishing between the Menemist judges, who were
involved in corruption cases, from other judges who were not, Duhalde
started the impeachment process of all the justices at the same time. The
costs of his action outweighed the incentives and were further increased
when he pursued thiswrong strategy.
Since Duhalde was the head of an interim government, he had dif
ferent incentives from those of Kirchner, who at the time of the reform
looked forward to a four-year term. For Duhalde, the prioritywas to sta
bilize the economy and lead the political transition. The need for him
to solve the economic crisis and to have the court on his side on this
specific issue was a bigger incentive than to reform the court. This is
why the court impeachment process was interrupted when the court
threatened to block the government's economic program.
As for his resources, as an interim president, Duhalde did not have
enough political leverage to confront the court's resistance. In this
sense, the ADC official observed that in 2002 the court's justices "felt
that Duhalde had no legitimacy, he was provisional, and the political
atmosphere was not tolerant at all" (Gullco 2005). Moreover, Duhalde's
strategy of impeaching all the justices was not generally accepted and,
of course, provoked huge opposition from the court, which reacted as
a bloc when it confronted the executive's initiative. In this regard, the
Poder Ciudadano executive remarked that "Duhalde's errorwas to initi
ate all the impeachments together. Besides, there was too much pres
sure, because of the economic crisis, and because of the decisions about
the corralitc? (Perez Tort 2005). In this context, the Supreme Court
defended itself and strategically changed its position during the crisis
through its decisions on the confiscation of banking assets. This shift
cannot be explained as strategic defection, in Helmke's (2002) terms,
since itwas not a strategy to ingratiate the court with potential future
authorities but a move to resist itsdiminution, which ultimately proved
successful.
Kirchner in 2003, by contrast, had strong incentives to pursue a

reform that could help to restore presidential authority and legitimacy.
Besides, the Kirchnerist deputies in Congress initiated the impeachment
process on a case-by-case basis, including only the most questionable
justices. Because the reform entailed a restriction on the executive,
moreover, itobtained consensus. In this regard, Adrian Ventura, a legal
journalist, observed thatwith the announcement of the new mechanism
for the designation of justices, "the President could disarm [then-court
president Julio] Nazareno" (La Naci?n 2003e). The latter had accused

the government of wanting to pack the court with a new, uncondition

ally supportive majority (Pagina/12 2003). Confronted with this strategy,
the court fractured into two groups, one of them composed of theMen
emist judges (La Nation 20030- In thisway, the executive was able to
neutralize the opposition of these justices, who were backed only by a
conservative professional association, theAsociacion de Magistrados (La
Nation 2003c).
The Supreme Court as Reformist Actor:

Judicial Accountability and Legitimacy Building
After its renovation, the Supreme Court assumed a reformist role in
regard to itsown jurisdiction and internal procedures, which implied an
increment in itsmechanisms of accountability. A strong motivation of
the justices to implement these changes was to improve the reputation
and legitimacy of the court, which had been undermined not only by its
questionable relationship with political power but by the lack of trans
parency and publicity in its functioning and practices. In November
2003, accepting the position of chief justice, Enrique Petracchi said that
one of the priorities of the new court was to "improve the image of the
judiciary in general and the Supreme Court in particular," and declared
that his colleagues had "made a commitment towork in that direction"
(La Nation 2003g).
Like reforms promoted by the political powers, the content of
changes implemented by the Supreme Court had also been proposed by
civil society organizations, and the process of these reformswas marked
by the interaction between the court and NGOs. At the end of Novem
ber 2003, Petracchi met with the representatives of the coalition A Court
forDemocracy and reportedly agreed with the proposals of that group
regarding the disclosure and transparency of the court's procedures,
which the court later implemented (ADC 2003). Subsequently, Justice
Eugenio Zaffaroni also met with these organizations, and after that
meeting the president of the foundation Poder Ciudadano said, "the fact
that Zaffaroni knew the proposals contained in documents 'A Court for
Democracy' and that he agreed with many of the issues presented there
is auspicious in terms of the possibilities of building bridges, so many
times broken, between civil society and the Supreme Court" (Poder Ciu
dadano 2003b).
Ricardo Lorenzetti, who became chief justice on January 1, 2007,
also met with A Court for Democracy (Poder Ciudadano 2003b) and
received advice from the civil organization FORES on redefining the
court's jurisdiction (Lynch 2005). In this sense, ithas been observed that
"this court ismuch more receptive to reform proposals" and that it can
"generate changes in the judicial system, since it ismuch more legiti

mate than the former one, and ithas acknowledged that its role is to be
the head of the system, and not only to decide cases" (Gershanik 2005).
Ithas also been recognized that,with itsnew composition, the Supreme
Court "has assumed the responsibility of promoting changes to its inter
nal functioning that have increased its transparency and credibility, and
that has been a clear message for the rest of the Judicial Power as well
as for the Judicial Council" (CELS 2004, 83).
Conclusions
After more than a decade marked by political control over the Supreme
Court inArgentina, inwhich the court was also associated with corrup
tion and the restriction of rights, the 2001-2 political, economic, and
social crisis put this institution into the spotlight and fostered the coor
dination of social demands for reform. This study has argued that in
2003, those demands generated incentives for the firstpresident elected
by popular vote after the crisis to promote reforms as a means to
achieve legitimacy and to build conditions for the exercise of power.
This case suggests that there exist other motivations for politicians
in Latin America to promote judicial reform beyond the incentives that
originate in electoral uncertainty or divided government, and that the
process of reforms may involve other actors besides political elites. It
shows that governments that seek to rebuild political authority in uncer
tain institutional contexts may promote reforms that entail self-restriction
if they face a significant social demand. In this sense, the study high
lights the importance of reformist social mobilization and preexisting
civil society organizations, which can take advantage of unexpected
opportunities to advance reform proposals.
More generally, these findings indicate that the rule of law can be
fostered not only in the context of competitive politics but in other con
ditions, such as social pressure for institutional reform and a context that
favors its influence. Furthermore, the Argentine case calls attention to a
set of reforms related to judicial accountability, which is a rather over
looked aspect in reform programs as well as in the study of judicial
reform in Latin America. In this regard, this analysis shows that the
search for legitimacy can also become an incentive for judges, who may
promote judicial accountability in order to strengthen the institutional
power of courts.
In contrast with the insurance policy rationale, this account allows
us to explain processes of reform implemented in a contested polity, in
which authorities are more concerned with the priority of creating con
ditions for governance at the beginning of an administration than with
limiting a potentially subsequent government. On the other hand, in
contrast with the logic of divided government, which explains cases in

which the executive isweak because itdoes not have control over Con
gress, the search for legitimacy rationale accounts for cases inwhich the
executive isweak because it lacks social support due to a crisis of polit
ical and institutional legitimacy, even though itmay have congressional
leverage.
Because incentives for reform are not predetermined by the actors'
position in the distribution of political power, and because legitimacy
can be sought by different means, this account has less predictability
power than models based on party competition. Therefore, it is neces
sary to examine specific contexts and particular motivations of political
actors in each circumstance to explain how the incentives and purposes
of reformswere formed and to argue that the search for legitimacy was
the driving source of institutional changes. We can expect, however, that
in other types of institutional crises thatmodify the status quo, the emer
gence or empowerment of new significant actors that demand institu
tional changes may generate incentives for political authorities in need
of legitimacy, as well as for courts, to advance reforms that entail self
restriction.
Notes
I wish to thank Silvia Incl?n, Matilde Farren, Francisco Valdes Ugalde,
Carlos Acuna, Hector Fix Fierro, Juan Gonzalez Bertomeu, and Javier Couso for
their invaluable comments and help. I am also grateful to the editors and anony
mous reviewers of LAPS for their extremely useful remarks and criticism.
1. Another set of studies have analyzed the political factors of judicial deci
sional independence, and particularly of high courts' behavior in Latin America.
In particular, Iaryczower et al. (2002) and Helmke (2002, 2003) explain varia
tions in the decisions of theArgentine Supreme Court based on political com
petition rationales. Rios-Figueroa (2007) and Navia and Rios-Figueroa (2005)
also attribute the autonomy and effectiveness of constitutional courts in Latin
American countries to the existence of a divided polity. Although these studies
address the sources of judicial independence, their arguments are not discussed
here, because this article aims to explain institutional changes related to the
structural autonomy of the Argentine court and not the factors that affect the
courts' behavior and decisions, whose dynamic is different.
2. Grindle (2000) argues thatone of themotivations of politicians in Latin
America to initiate institutional reforms related to decentralization of power in
Venezuela, and Bolivia was the need to build institutional

Argentina, legitimacy.
to her account,
however, in those cases, incentives did not depend
According
on social demands, but had to do with the systemic need to preserve the dem
ocratic political order.
3. Since 1930, the country has seen six coups: in 1930, 1943, 1955, 1962,
1966, and 1976. Following the last four,under military governments, the court
was completely replaced (Carrio 1996; Zaffaroni 1994), and subsequently
when democracy was reestablished.
changed

RUIBAL:THE ARGENTINESUPREMECOURT 79
4. Before the reforms, the court published only some of its decisions, only
in part, and more than six months after they were issued (CELS et al. 2003). The
court held practically no public hearings (Carrio 1996; CELS et al. 2003). There
was no public information about the circulation of case files within the court
(Carrio 1996; CELS et al. 2003), and meetings took place between justices and
only one of the contending parties (CELS et al. 2003; Schvartzman 2005).
5. The court's was broadened under Menem's government by
jurisdiction
two means: the minimum amount of money in dispute which per
by lowering
mits the Court to intervene in situations inwhich the government is one of the
parties, and by giving jurisdiction to the court as a third level of appeal inpen
sion law cases. It has been pointed out that these extensions of the court's juris
diction have been used to favor the government (Carrio 1996; CELS 2004) and
that the court's in pension law issues was unconstitutional (Zaffaroni
jurisdiction
2005). In Argentina, furthermore, the expansion of the court's jurisdiction has
meant a
disproportionate increase in the number of cases it has to deal with,
it into one of the courts with the largest caseloads in the world
transforming
(Sag?es 2005). In 2000, for example, it resolved 14,770 cases, of which 8,271
dealt with matters related to pension law (CELS et al. 2003a).
6. Among itsmain features, the decree established that within one month
of a vacancy on the court, to publish,

the executive for three days, the name
has
and curriculum vitae of the candidate to occupy that position. After that time,
citizens can present their comments and objections within a 15-day period. Then
the executive has 15 days to decide if itwill present the candidate for confir
must present a
mation by the senate. The decree also stipulates that candidates
statement of debts and assets, so as to avoid conflicts of interest. For the com
plete textof the decree, see InfoLEG 2003.

7. Thedecree establishes criteria regarding the candidate's moral and
technical capability and commitment to democracy and human rights. It also
says that, besides the constitutional requirements to be a Supreme Court justice,
the executive should consider the candidate's contribution to diversity in terms
of gender, and geographical representation on the court.
judicial specialties,
8. This reform established two additional stages before the public confir
mation a period in which civil society can present observations and
hearing:
questions to be asked of the candidates, and a public session of the Confirma
tion Commission, in which its members and other senators can question the
candidates about issues and objections posed by citizens. The reform also estab
lished that the voting in the confirmationhearing should be public, not anony
mous, as it used to be.
9. Chief Justice Julio Nazareno resigned on June 27, 2003, when his
impeachmentwas imminent;Guillermo Lopez resigned on October 23, 2003;
and Eduardo Moline O'Connor, considered the ideologue of the Menemist
was removed the senate on December 3, 2003. On 1,
majority, by September
2004, when his impeachment proceeding was about to start,Adolfo Vazquez
resigned. Antonio was removed on 28, 2005.
Boggiano September
10. On October 15, 2003, Justice Eugenio Zaffaroniwas confirmed by the
senate; the following year, on July8, JusticeCarmen Argibaywas confirmed,but,
as she was at that time commissioned to the International Criminal Court for the
former Yugoslavia, she took office six months later. Justice Elena was
Highton

confirmed on June 9, 2004, and became the firstwoman to join the court under
a democratic government. On December 16, 2004, the senate confirmed Justice
Ricardo Lorenzetti, who was elected chief justice on November 7, 2006.
11. One was leftby deposed justice Boggiano and the other by Justice
Augusto Belluscio, who had reached retirement age.
12. On November 29, 2006, Congress reduced the size of the court from
nine to five members. However, its current seven members will stay in office
until they resign or retire.
13. In 2003, the court established the disclosure of the circulation of case
files among the differentjustices (Acordada 35 /2003, December 11); a different
treatmentforcases of institutionalsignificance, including theneed to fix thedate
inwhich theywould be considered by the court (Acordada 36/2003, December
18); and the publication in full textof its relevant verdicts (Acordada 37/2003,
December 18). In 2004, the court stipulated that any meeting between litigants
and justices must take in the presence of the counterpart (Acordada
place
7/2004, February 24). In 2005, the court established that itsmembers should
publish theirassets (Acordada 29/2005, December 27), in compliance with the
Law of Public Ethics, fromwhich the court's justices had exempted themselves
in 2000. The text of Acordadas, or internal agreements of the Supreme
complete
Court, can befound at Corte Suprema de la Justicia.
14. Public hearings at the Supreme Court were a mechanism included in
theArgentine constitutional system,but theyhad hardly been used before the
court's reform.
15. In 2005, the court declared that its own jurisdiction
as an ordinary tri
bunal of third instance in matters related to pension law was unconstitutional
(Sag?es 2005).
16. Kirchner's administration has been criticized for its indiscriminate use
of emergency powers. Indeed, he issued more decrees than any other constitu
tional government inArgentine history (La Nation 2006c, 2008) and promoted
the delegation of so-called superpowers to the chief of the cabinet (La Nation
2006b). The government was also denounced for its intervention in the opera
tions of theNational Instituteof Statisticsand Census (INDEC), which measures
inflationand poverty, among other indicators (Pagina/12 2007).
17. Kirchner promoted the expansion of the high court of the province of
Santa Cruz and appointed his political cronies to it.But hismost disputed action
was the illegitimate removal of the provincial attorney general (Poder Ciu
dadano 2003a; La Nation 2003a).
18. In 2005, thegovernment tried to stop the impeachment of JusticeAnto
nio Boggiano, who had adopted a cooperative attitude toward the new admin
istration but was accused under the same charges as already dismissed Justice
Moline O'Connor (P?gina/12 2005a). The executive, furthermore, delayed its
decision on vacant seats after the court's renewal. In both cases there was a
strong public reaction and, as a result, the impeachment process continued and
the court was downsized.
19. Menem had been under house arrest since June 7, 2001 for intervening
in the illegal sale of weapons to Ecuador and Croatia during his administration.
A court decision set him free inNovember (Clarin 2001a). Poll results indicate
that81 percent of thepopulation thought thisdecision "obeyed political reasons

and not the strict application of the law," and 44 percent said that this under
mined their trust in the judiciary (Clarin 2001b).
20. The general cry was "que se vayan todos [los politicosj" (all politicians
must go), and
people also demanded "Un corte a la Corte" (Curtail the court).
21. Among these organizations were the Asociaci?n de Abogados Laboralis
tas, Asociaci?n de Abogados de Buenos Aires, Federacion Judicial Argentina, Cen

tral de los Trabajadores Argentinos, Madres de Plaza de Mayo-Linea Fundadora,
Federacion Universitaria Argentina, and Asociaci?n Americana de Juristas.
22. These organizations were Poder Ciudadano, Center for Legal and Social
Studies (CELS), Instituteof Comparative Criminal and Social Studies (INECIP),
Environment and Natural Resources Foundation (FARN), Association for Civil
Rights (ADC), and Union of Consumers.

23. "Con todos esos gestos, el Presidente acumul? m?s que muchos
poder
otros en un periodo entero de gobierno."
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Self-Restraint in Search of Legitimacy: The Reform of the Argentine Supreme Court

Author(s): Alba M. Ruibal

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

In 2003, the Argentine executive a process of Supreme

power in the second. This study, by contrast, explains the Argen

the aftermath of one of the deepest social and political crises in

? 2009 University ofMiami

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

factors can break the historical subordination of courts and generate

Explaining Judicial Reform in Latin America

A broad range of studies on the recent wave of judicial reforms in Latin

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

ticularly the role of national political elites in processes of structural

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

mentation, which is, according to Finkel, "the crucial determinant of

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

In contrast with explanations focused on party competition, in a

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

results (Acuna 2005). As the Argentine case illustrates, a crisis can

explained by Incl?n (2003), in the case of the Mexican judicial reform

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

An examination of the sources of the court's delegitimation allows

The Crisis of Legitimacy and the

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

tutional guarantees in criminal processes (Carri? 1996; Gargarella 2004),

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

nity to nominate a new candidate for the court, he chose a member of

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

Political Process of the Reform

Explanations based on the influence of external factors are not suitable

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

The Crisis as Strategic Opportunity

Argentine society had historically paid scarce attention to the composi

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NGOs elaborated reform proposals thatwere later implemented by the

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ence of themilitary or guerrillas, as in the context of the reforms stud

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

The Executive's Strategy: The Search for Legitimacy

The election of Nestor Kirchner as president inMay 2003 brought about

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the document "A Court for Democracy" was not well

office, he called us and said: "Iwant to use this document as

As we haveseen, the subsequent reform of the senate's procedure for

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

civil society becomes a relevant explaining factorwhen it is combined

Kirchner in 2003, by contrast, had strong incentives to pursue a

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

the government of wanting to pack the court with a new, uncondition

The Supreme Court as Reformist Actor:

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This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

Venezuela, and Bolivia was the need to build institutional

This content downloaded on Thu, 7 Mar 2013 14:00:55 PM

of a vacancy on the court, to publish,

plete textof the decree, see InfoLEG 2003.

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tas, Asociaci?n de Abogados de Buenos Aires, Federacion Judicial Argentina, Cen

Rights (ADC), and Union of Consumers.

Acuna, Carlos. 2002. La din?mica de la reforma en