[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]
The literature on democratic erosion and democratic backsliding has documented how political leaders around the world seek to use mechanisms of (formal and informal) constitutional change to erode constitutional democracy. In particular, capturing courts has become part of the anti-democrat toolkit. As organs that are able to review their policies, making sure to control courts seems to be on the top of the list of priorities of political leaders harboring such intentions. In this context, apex courts are generally understood as potential victims of political leaders with authoritarian impulses. Conversely, so long as courts remain uncaptured, they are understood as the last line of defense of constitutional democracy. Relatedly, constitutional judges, as individuals, are also assumed as potential positive contributors to constitutional democracy’s well-being. Recent works have analyzed what has been called ‘towering judges’—that is, judges that have “made a significant impact on the trajectory and development of constitutional law”. But what happens when, without being technically captured, the significant contribution of a court, as a result of the Chief Justice’s actions, goes against the most basic understanding of constitutional governance? Is it possible to think of towering judges figures in a damaging way?
In a high-profile case (Acción de Inconstitucionalidad 64/2021) decided last April, Mexico’s Supreme Court, and more specifically, Chief Justice Arturo Zaldívar, changed the constitutional voting rules to strike down legislation in abstract review in order to save the constitutionality of a set of legislative amendments to the Ley de la Industria Eléctrica (LIE—electricity industry statute). The amendments represent one of the main items in President López Obrador’s agenda and were adopted to reverse the energy policy of his predecessor, Enrique Peña Nieto, which was introduced as a constitutional amendment in 2013 to open the energy industry to the private sector. In a nutshell, the amendments to the LIE privileged the energy state-owned company (CFE) in the provision of basic energy services (regardless of price and source) and at the same time relegated the role of clean energy companies in the market (art 4 § VI and 26).
In short, the claimants made two arguments of unconstitutionality. On the one hand, they argued that the provisions breached the constitutional right to a healthy environment (medio ambiente sano); and, on the other hand, that they violated constitutional antitrust and free-market principles (competencia económica).
The Mexican Constitution requires 8 out of 11 votes to strike down provisions in abstract review regardless of the reasons to reach that conclusion (Art. 105-II). In this case, six justices considered that the challenged articles violated both the right to a healthy environment and the constitutional principles of antitrust and free-market. Two additional Justices considered the articles were unconstitutional but only agreed with one of the two arguments brought forward by the claimants. Justice Alfredo Gutiérrez Ortiz Mena considered the articles violated the right to a healthy environment and Justice Juan Luis González Alcántara, considered that the articles were unconstitutional for violating the principles of antitrust and free market. In sum, 8 justices considered the articles were unconstitutional for different reasons. However, the articles were not struck down.
Regardless of the fact that there were indeed 8 votes to strike down the relevant (and most controversial) articles of the LIE, the Chief Justice decided, on the spot, to change the way votes are counted. Importantly, the reasons to consider whether a legal provision is unconstitutional are irrelevant when it comes to counting the votes. However, in this instance, for no apparent reason, the Chief Justice decided to count them differently. Instead of counting the votes regardless of the reasons, the Chief Justice (inexplicably) claimed that in order to strike down legislation in abstract review the constitution required that the reasons to cast a vote for the unconstitutionality of a given article should be the same (see page 119 of the session transcript). The result of counting the votes in this way was that the required 8 votes to strike down the articles would not be reached: there were 7 votes for unconstitutionality in terms of the antitrust principles and 7 for unconstitutionality in terms of the right to a healthy environment. A few members of the court questioned the decision to count votes in this way (see, e.g., the intervention of Justice Aguilar Morales on page 120 of the session transcript), but the Chief Justice still proceeded to count differently. Accordingly, the relevant provisions survived judicial review. Unsurprisingly, the day after the decision was handed down, President López Obrador publicly declared being very happy about what he considered a historic and patriotic decision by the court.
Scholars (see e.g., here, here, and here) and the media (see e.g., here, here, and here) reacted to the Chief Justice’s irregular action. In a press conference, which can be described as outright gaslighting, the Chief Justice responded by saying that the methodology to count the votes was normal and by calling his critics mediocre liars that are just looking to undermine the credibility of the Supreme Court (see the footage of the press conference here, mins 27:15 – 47:03). He went so far as to make the baseless claim that behind his critics there are anti-rights groups aiming to weaken the Supreme Court as a rights protector to eventually rollback women’s rights, LBGTQ+ rights, and disability rights (mins 43:15 – 47:03).
Changing the constitutional voting rule to save the constitutionality of a piece of legislation is unprecedented. And even though it is hard to measure the damage that this episode will have on constitutional governance in the long run, it sets a dangerous precedent regarding the observance of the most basic rules of court proceedings. This case adds up to a string of actions/events (which I have been documenting – see, e.g., here, here, here, here, and here) that have put the independence of Chief Justice Zaldívar and the court into question over and over again.
When the undermining of the institution comes from within, the larger question becomes how does this fit into the traditional understanding that sees judges and apex courts as the last line of defense of constitutional governance. Making sense of the Chief Justice’s actions is not that straightforward. He was appointed to the Supreme Court in 2009 after being nominated by former president Felipe Calderón (from the conservative PAN). In this sense, a partisan/capturing reading of his actions would not be plausible. It is also not entirely clear if this case could fit into what Rosalind Dixon and David Landau have called abusive judicial review. It is perhaps too early to say whether the minimum core of democracy has been eroded. However, to the extent that in the case I have described the Chief Justice’s actions effectively prevented the correct functioning of judicial review as a checking mechanism, abusive judicial review cannot be discarded. Regardless of his motivations, events like the one I have described put into question the independence of the Chief Justice. If it is possible to think of towering judges in a damaging way, Mexico´s Chief Justice Zaldívar would be a case worthy of further study.
Suggested citation: Mariana Velasco-Rivera, When Judges Threaten Constitutional Governance: Evidence from Mexico, Int’l J. Const. L. Blog, Jun. 16, 2022, at: http://www.iconnectblog.com/2022/06/when-judges-threaten-constitutional-governance-evidence-from-mexico/
 Rehan Abeyratne and Iddo Porat, ‘Introduction: Towering Judges – A Conceptual and Comparative Analysis’ in Iddo Porat and Rehan Abeyratne (eds), Towering Judges: A Comparative Study of Constitutional Judges (Cambridge University Press 2021) 1