Sergio Verdugo, “How Judges Can Challenge Dictators and Get Away with It: Advancing Democracy while Preserving Judicial Independence.” Columbia Journal of Transnational Law, vol. 59, no. 3 (2021): 554-607
Summary: The literature on constitutional courts in authoritarian and hybrid regimes typically suggests that judges who challenge such regimes in high-stakes cases risk substantial political backlash. Accordingly, some comparative constitutional law scholars argue that courts should develop strategies such as judicial avoidance or weak judicial review practices to prevent a clash with the governing regime. Verdugo proposes an alternative, suggesting that those strategies are unnecessary where courts are able to preserve or promote democratic values without incurring backlash. Verdugo uses the Chilean Constitutional Court during the Pinochet Dictatorship (1973-1990) to show how a constitutional paradox can push dictators to respect adverse judicial rulings in high-stakes scenarios, and to identify the preliminary conditions in which judges may be able to successfully deploy this strategy against the regime.