Gamboa, Laura; García-Holgado, Benjamín; & González-Ocantos, Ezequiel. Courts against backsliding: Lessons from Latin America. Law & Policy 46(4): 358–379 (2024).
Across Latin America’s recent wave of democratic erosion, courts have often been portrayed as victims of executive encroachment or as instruments weaponized by autocrats. This article develops a different analytical frame by highlighting cases in which independent high courts successfully pushed back against would-be autocrats, helping to stall or complicate backsliding. Through examples from Argentina, Colombia, and Mexico, the authors introduce the concept of constitutional balancing: judicial interventions that block or water down reforms designed to enhance executive power or alter institutional checks. They argue that constitutional balancing is especially effective because it typically relies on procedural arguments, avoids radical jurisprudential innovation, and presents lower existential stakes for politicians—conditions that reduce backlash and allow courts to “settle” political conflict long enough for democracy to survive another day.
The article contrasts this with public administration policing, such as high-profile anti-corruption crusades (e.g., Lava Jato). Although also aimed at protecting democratic integrity, these interventions tend to be disruptive, protracted, legally unorthodox, and politically explosive, often fueling polarization and enabling populist outsiders. The comparison underscores that not all horizontal accountability functions are equal: while anti-corruption drives can destabilize politics, procedurally grounded constitutional review is better positioned to interrupt autocratic projects without triggering system-threatening backlash.