Judges and Their Loyalties: A Comparative Study Focused On the Venezuelan Supreme Court

Why are courts unable to check overzealous governmental actors in Latin America? In addition to the traditional approaches to judicial decision-making, I contend that the existence of informal linkages between judges and political elites is a key explanation for judicial behavior, especially in cases in which courts are asked to hold the government accountable. In contexts where particularistic and clientelist relations prevail, judicial nominations to the highest judicial posts are consciously made to ensure the judges\u27 loyalty to the ruling elites, thus generating judiciaries that are chronically dependent on power-holders and unable to uphold the rule of law. These informal patterns, often rooted in past political practices, and related to the quid-pro-quo distribution of political resources, may even persist across different institutional configurations and contexts. The existence and importance of judicial loyalties explains very well the limited emergence and eventual decay of judicial power in Venezuela. In this country, the existence of loyalty links between judges and predominant political elites impaired the emergence of an influential judiciary during the democratic years - a phenomenon that was particularly clear in the longstanding lack of political clout of the Venezuelan Supreme Court. Moreover, following Chávez\u27s arrival in power in 1999, and the subsequent change of regime that took place, an institutionally empowered Venezuelan Supreme Tribunal briefly emerged as a prominent political actor - yet quickly lost its ability to remain independent and influential, as a result of the respective pressures that pro-Chávez and opposition forces placed in the judges to rule on their favor. Following a court-packing scheme carried out by Chávez\u27s allies in 2004, and an increasingly authoritarian political environment, the Court gradually reduced its ability to check governmental authority, until notoriously becoming one of the weakest in the region. The key to understand this process is the continuous dependence of judges on their respective political elites throughout most of both periods under examination. I back my argument with qualitative and quantitative evidence, including thorough analyses using a database of abstract constitutional review cases decided by the Venezuelan High Court between 1989 and 2009, specifically compiled for this project. I assess trends of the court\u27s willingness to challenge the regime over time, and empirically test the court\u27s proclivity to strike down legislation as a function of different covariates - including the political affiliation of the litigants in question. Lastly, for the purpose of extending this analysis in the future, I offer a preliminary look at data at the individual justice level, discussing voting patterns in the 2000-2009 years; and develop the foundations for future cross-country analyses in two additional settings: A stable democracy with a independent judiciary (Costa Rica 1990-2008), and a democratizing country with a dependent high court (Paraguay, 1995-2008). This study has powerful implications, not only for our understanding of courts in Latin America, but also for our broader appreciation of dynamics of political behavior in weakly institutionalized democratic contexts. Specifically, it sheds additional light to understand the puzzling collapse of Venezuela\u27s democracy, by assessing its weakest and most marginal branch of power, and its inability to emerge as a powerful and independent judicial institution