—Sonia Anaid Cruz Dávila, Research fellow, School of Law, University of Warwick
Two years ago, Mexico’s then-president Andrés Manuel López Obrador (AMLO) submitted a package of 20 constitutional amendment proposals to the Mexican Congress. Among them were a series of changes to the structure, functioning, and powers of the judiciary at both federal and state levels, which would later be enacted as law. Without a doubt, the most striking feature of this reform was the popular election of all members of the judiciary, including Supreme Court Justices, circuit magistrates, and district judges.
This particular amendment has been met with outrage by academics, lawyers, and civil society organisations both nationally and internationally, who express “concern over the potential consequences that the popular election of judges may have on judicial independence, the rule of law, and the safeguarding of rights and freedoms in Mexico”. Indeed, replacing a merit-based judicial appointment mechanism with a procedure that allows the election of judges to be driven by party politics is likely to deliver judges with clear proximity to the political parties in power which, in turn, is likely to discourage judges from adjudicating cases against the government. The popular election of judges also contradicts the conception of judges as answerable to the constitution instead of the people, as it encourages judges to make politically advantageous decisions rather than constitutionally required ones, in an effort to appease the public and keep their seats. Together, these undesirable consequences may undermine the protection of rights.
And yet, there are those who support the change based on the direct democratic legitimacy that, from their perspective, it grants to the members of the judiciary. By electing judges by popular vote, the people can reclaim their sovereignty and restore their trust in an institution that they see as corrupt, nepotist, and oblivious to their challenges, demands, and expectations. The popular election of judges thus appears to circumvent the ‘counter-majoritarian difficulty’, according to which courts, despite having the weakest democratic credentials, can impose their decisions over the will of the majority. As a result of the reform, the argument goes, courts will have stronger democratic credentials, if not to impose their decisions over the will of the people, at least to be an alternative expression of such a will.
Defenders of the amendment also claim that it will increase judicial accountability, as judges will be “accountable to the public, as opposed to the politicians and government agencies that appoint them”. They similarly note that the change enjoys widespread popular support, as then-presidential candidate Claudia Sheinbaum supported the reform, and she won the presidential election by a landslide. Those who oppose the amendment, by contrast, consist of businesspeople, diplomats, judges, law students, legal ‘experts’, and NGOs. This, in the view of its proponents, demonstrates the ‘elite’ character of protesters, who do not trust ordinary people with political power out of a fear of ‘populist’ rule.
A Discrepancy in the Literature
This post argues that the disagreement about the merits of the Mexican judicial reform illustrates a broader discrepancy in the literature on constitutional and democratic theory. In the last decade, two global phenomena have raised concern among legal and political scholars: (i) ‘democratic backsliding’ (which, in turn, has given rise to what David Landau, Rosalind Dixon, and others call ‘abusive constitutionalism’), and (ii) the crisis of legitimacy of, and trust in, classic liberalism. These two phenomena have in common the view that liberal democracy (as it emerged after the Second World War) is, if not slowly dying, at least undergoing a deep transformation. The difference, however, is that the former blames such a death (or transformation) on the rise of authoritarianism and populism, whereas the latter sees it as a byproduct of liberal democracy itself.
Indeed, whereas constitutional theorists alert to the dangers associated with allowing authoritarian and populist leaders to erode the ‘democratic minimum core’ (i.e., the core institutions and rights that liberal democracy needs to survive), democratic theorists criticise the failure of liberal democracy not just to represent the interests of citizens (both minorities and ‘invisible’ majorities), but also to create meaningful opportunities for participation and deliberation. The disagreement about the Mexican reform is just one instantiation of this discrepancy in practice, but one that can shed light on competing visions of democracy.
Democratic Backsliding and Abusive Constitutionalism
To see why, let me say more about the phenomena that have caught the attention of scholars. Among constitutional theorists, ‘democratic backsliding’ has been characterised as “the concentration of power in the hands of governments that, once freed from the checks and balances characteristic of constitutional democracy, establish themselves irreversibly in power, effectively eliminating the possibility of genuine democratic alternation”. Even in those cases in which elections are still possible, they argue, the concentration of power in a single political force and the absence of checks and balances may be such that the alternation among political actors is insufficient to contain their authoritarian tendencies.
Democratic backsliding is often triggered by highly popular and populist leaders who take advantage of the disappointment of citizens in conventional politicians to advance a political programme that rejects any constraints on majoritarianism. Such leaders see any opposition to majoritarian rule as an affront to the mandate that, from their perspective, they have unilaterally received from the people. Although most citizens may agree in principle with their claim of unilateral rule ‘in the name of the people’, in the long run they may experience the negative effects of an excessive concentration of power.
As part of this trend, ‘abusive constitutionalism’ refers to “the use of mechanisms of constitutional change in order to make a state significantly less democratic than it was before”. This is done through the enactment of reforms that erode the essential rights and fundamental institutions that a liberal democracy requires to survive. Those rights and institutions are what Landau, Dixon, and others call ‘democratic minimum core’ (i.e., a commitment to fair, free, regular, and multi-party elections, the protection of rights and freedoms, and a set of checks and balances). This last element, in turn, may encompass a number of constitutional principles.
In countries experiencing abusive constitutionalism, the first affected institution is the judiciary, which becomes subject to attacks by an authoritarian or populist executive. When the executive enjoys the support of a sufficiently large majority in the legislature, it can pass amendments pertaining to the judiciary that, although “draped in the cloth of democratic language” (e.g., claims to democratise corrupt and elitist courts), are often aimed at curbing its independence. Constitutional theorists see these changes as abusive, first, because they go against the ‘basic structure’ or ‘constitutional identity’ of a liberal system (i.e., its historical continuity or internal coherence) and second, because they obliterate the democratic minimum core.
The Crisis of Liberal Democracy
Instead of warning against the risks of democratic backsliding and abusive constitutionalism for liberal democracy, democratic theorists focus on the crisis of legitimacy of liberal democracy itself. In their view, the rise of authoritarian and populist leaders and their engagement in democratic backsliding and abusive constitutionalism can be attributed to failings in the constitutional arrangement of liberal democracy, which make it unsuitable to create meaningful opportunities for citizen representation, participation, and deliberation. This unsuitability has generated distrust not only in political actors, but also in the mechanisms that were used to appoint them (and that they use to make decisions).
In response, democratic theorists propose deliberative democratic innovations (e.g., deliberative minipublics such as citizens’ assemblies, deliberative polls, and innovative legislatures) that aim to embody many of the virtues associated with liberal institutions (e.g., collective debate on issues of public concern with the aim of making decisions that all citizens can reasonably accept), while avoiding their defects (e.g., incompetence, particularistic motivations, conflicts of interest, and responsiveness to private rather than public interests). Some of these proposals, however, are either sceptical or entirely dismissive of the traditional counter-majoritarian procedures of liberal democracy.
The Mexican Judicial Reform
A good way to appreciate this discrepancy in practice (between those who paint a grim picture of what the world would look like without counter-majoritarian institutions and those who show enthusiasm for democratic innovations that downplay the importance of those counter-majoritarian mechanisms) is to consider the work of Roberto Gargarella.
On the one hand, Gargarella agrees with democratic theorists that the key features of liberal constitutionalism (e.g., judicial review, political representation, checks and balances, and protection of individual and minority rights) were all built around a ‘discomfort with democracy’. Instead of encouraging collective dialogue on questions related to fundamental human rights, they created restraints upon majority rule under the pretence that the majority, by itself, is unable to protect minority rights. Gargarella rejects this premise, arguing that the fear of being subject to majority rule arises from a ‘counter-majoritarian bias’ or ‘democratic distrust’ implicit in the constitutional arrangement of liberal democracy. Rather than entrusting collective decisions to either elected representatives or unelected officials, then, Gargarella proposes a ‘radical’ conception of deliberative democracy based on the regulative ideal of “law as a conversation among equals”. Although he does not explicitly endorse any deliberative democratic innovation, his conception is presumably compatible with at least some of them.
On the other hand, however, Gargarella does not see the Mexican judicial reform as an exemplary democratic innovation. Despite being critical of the counter-majoritarian powers enjoyed by the judiciary in any liberal democracy, he claims that the judicial reform does not do anything to “bring justice closer to the people”. Instead of creating meaningful opportunities for citizens to control and hold judges accountable for their actions, the reform discourages citizen participation beyond the periodic election of judges. What makes Gargarella’s criticism different from that of constitutional theorists is thus that he does not reject the judicial reform because of its erosion of the democratic minimum core (and the concomitant eradication of a constitutional check on majoritarian rule), but rather because of its exclusion of the people from decision-making and the process of correcting and making judges responsible for their actions.
Gargarella’s approach is peculiar because, despite agreeing with the premises of democratic theorists, he joins constitutional theorists in rejecting the Mexican judicial reform. He thus simultaneously endorses aspects of competing visions of democracy. This is not to say that the advocates of those visions could not object to his reasoning. In fact, that is precisely what we should do if we aim to identify each side’s limitations and, ultimately, offer a more complete (and conciliatory?) account of the judicial reform.
Democratic theorists could for example argue that, for better or worse, the reform did begin an unprecedented process of collective discussion on the role of the judiciary in a liberal democracy. Such process included not only academics, lawyers, and NGOs (as is usually the case), but also ‘lay people’ who had previously shown little interest in issues of constitutional amendment. In non-ideal circumstances, this is perhaps the best we can hope for. For their part, constitutional theorists could claim that Gargarella and others fail to note the democratic relevance of constitutional checks on majoritarian rule. Such checks can play a significant role in protecting the fundamental values of democracy. We should therefore focus on developing a democratic argument for (the independence of) the judiciary: one that is more compelling than the popular election of judges.
Suggested citation: Sonia Anaid Cruz Dávila, The Mexican Judicial Reform: An Illustration of a Discrepancy in the Literature, Int’l J. Const. L. Blog, Mar. 17, 2026, at: http://www.iconnectblog.com/the-mexican-judicial-reform-an-illustration-of-a-discrepancy-in-the-literature/