The Supreme Court stands alone among the three branches of government in Mexico to have undergone an in-depth reform in 1994 to match the political reality of the 21st century. This has conferred the Court a special character that its members have not fully embraced, however. Although Mexican presidents up to 2018 respected its rulings, the Supreme Court’s justices have never taken a leading role, which the separation of powers would entitle them to. This has prevented them from earning the respect and regard of the general public. That vacuum allowed president Andrés Manuel López Obrador to force the ouster of a justice in 2019 and manipulate the Court’s president who, at least in theory, is entrusted with protecting citizens’ rights above everything else.
Obviously, no multi-member body is born with overall legitimacy. Particularly, in a country that entertains so poor an opinion of its judges. The judiciary is, after all, an uncomfortable power, whose constitutional role is to settle disputes between the other branches, ensuring that its actions and rulings abide by the constitutional framework. What’s crucial isn’t popularity of the judiciary’s decisions, but their soundness. Supreme Court justices gain (or lose) their credibility through day-to-day decisions proceedings. Prestige, legitimacy and, therefore, independence, are earned. These are attributes that come about automatically. Moments of conflict are key in defining the nature of a country’s constitutional court. It is in such moments when the Court’s relevance, integrity and significance is tested. That is the juncture the Mexican Supreme Court it finds itself in today. It either addresses the burning issues at its doorstep or it flounders. In other words, it is the time that the Court has to choose between opportunity or irrelevance.
A constitutional tribunal is an independent but equal branch in a system of divided government. It is dedicated that the the letter and spirit of the Constitution -the document that regulates life in society- is respected without worrying about the political ups and downs of the moment. Its core function is to protect citizens’ rights without having to worry about the limits, difficulties or imperatives of governing. Now that President López Obrador is threatening the Supreme Court’s future -by ramming a law through Congress extending the term of the current Court’s president- either the justices act or they let Mexico collapse. At the end of the day, their relevance depends on how they see themselves and how significant they consider their responsibility. As the arbitrariness of the executive and legislative branches grows, the Mexican Supreme Court becomes the only remaining rampart.
The point is key: once the justices commit to being employees of Mexico’s president, their function can only be to ratify his decisions. Either they embrace the freedom that their term as justices confers or they lose their reason for being. In the history of the Supreme Courts around the world there is always a turning point that forces them to define themselves. Either they meet the public and history’s needs or they surrender to the leader of the moment.
It is obvious that López Obrador’s power to “persuade” the court to favor the president’s interests is enormous. Violently removing a Supreme Court justice in 2019 -with the blessing of the Court’s own president- demonstrated that there are no limits to López Obrador readiness to prevail over everyone and everything. That leaves the Supreme Court justices facing a dilemma: to legitimize the arbitrariness and interests promoted by the executive branch or commit to their historical responsibility as guardians of the citizens’ rights enshrined in the Constitution. So far, only the federal judges at the district level have been willing to fully shoulder that responsibility.
The dilemma of committing to serve as an effective constitutional court is not exceptional. However, the Mexican Supreme Court has sidestepped it time and time again, as it happened in 2020 when it allowed López Obrador’s referenda on whether or not to prosecute the former Mexican presidents. The landmark case of Madison v. Marbury (1803) in the United States seems almost identical to the one facing the Mexican Supreme Court today: if the Court issued a decision forcing Madison to do what Marbury demanded, the president would ignore it, weakening the Court’s authority and legitimacy. On the other hand, if the Court denied Marbury’s right, its decision would appear biased in favor of the executive office for fear of retaliation. For the Chief Justice, either ruling would have undermined the elementary principle of the Constitution’s supremacy and legality. In the end, the Court’s decision in Madison v. Marbury -establishing the principle of judicial review- gave it the enormous legitimacy it enjoys to date.
The challenge for the Mexican Supreme Court is to break with the inertia of Mexico’s old presidential system, which produced tons of legislation without ever cementing an actual rule of law. Amid a midterm electoral process and enormous political fragility, the Mexican Supreme Court has before it the opportunity to elevate itself as an actual independent branch of government that not only safeguards citizens’ rights, but also the most basic constitutional principle: to prevent the abuse of power. Justice is not something abstract: they are the key rules for social coexistence.
“There are still judges in Berlin!” Are there justices in Mexico?
As Montesquieu wrote, freedom does not exist if the power to judge is not separate from the legislative and executive powers. For better or for worse, the future of Mexico is in its hands.
* Luis Rubio is chairman of México Evalúa-CIDAC and former chairman of the Mexican Council on Foreign Relations (COMEXI). A Spanish version of this Op-Ed appeared first in Reforma’s newspaper print edition. Twitter: @lrubio