Symposium on the Judicial Overhaul in Mexico Part 6: The Future of the Mexican Supreme Court

—Alfonso Herrera, Universidad Panamericana & Universidad Iberoamericana (Mexico City)

[Editors’ Note: This is Part 6 of a symposium on the recent constitutional amendments affecting the judiciary in Mexico. The introduction to the symposium can be found here.  The symposium pieces are cross-posted at ICONnect (in English) and at IberICONnect (in Spanish). We are grateful to Ana Micaela Alterio for her work in organizing the symposium.]

The Reform has Arrived

The 1994 judicial reform expired 30 years later, in 2024. On September 15, a cycle that had established a fully-fledged Constitutional Court proper to a constitutional democracy came to an end.

The 1994 model was not untouchable. But we did have a consolidated Court, which demonstrated its capacity to control the abuse of power. The 2024 reform, we now know, is a response to Court decisions against emblematic laws and projects of the current government (unconstitutionality of both the military command for the National Guard and the electoral plan, to give two examples).

Despite this, the 1994 and subsequent judicial reforms were never intended to completely transform the Mexican justice system. The 2011 reform to the human rights system was insufficient. No reform has included the urgent changes that continue to be demanded by the areas of justice closest to the people. Much less did they improve the conditions of access to justice for all.

The judicial reform of 2024 makes the same mistake but amplifies it to its maximum expression: it dilutes the sector of justice that had been showing sustained progress and that, in general terms, operated with professionalism in the Amparo trial, that is, the Judicial Power of the Federation, led by the Supreme Court.

A Popular Supreme Court for the Nation: Six Problems

One way to consider the Supreme Court’s future is to analyze the risky transformations introduced by the reform. I will point out six immediate problems.

The first problem can be none other than the popular election of Justices. Of course, it is different to talk about the popular election of a Court with 9 or 11 members as it is about the election of more than 1700 judges and magistrates of the Federation. The reform could have established only the popular vote of the Justices of the Supreme Court. It could have avoided a massive dismissal of the federal Judiciary (unacceptable from the perspective of our Inter-American human rights system; for a representative example, in the case Tribunal Constitucional vs. Ecuador). Two elections have been established for this total cessation: one half in 2025 and the other half in 2027.

Electing only the Supreme Court could have been possible not only because of the different nature of its functions (a high court with few members, which performs concentrated justice) but also because of the mind-boggling operational complications that will involve voting for numerous judicial positions with a high probability of being conducted with uninformed votes. Or because it will face the potential disdain of voters who would have to fill out hundreds of ballots, which would mean that each of them would have to invest several hours of their time on an election day.

Each branch (Executive, Legislative, and the Judiciary itself) will nominate their candidates. There will be an “evaluation committee” in each branch, made up of five persons “recognized in the legal activity.” Among other things detailed in the Constitution, this committee will identify the best-qualified persons. In the case of candidates from the Judicial Branch, the Plenary of the Court will nominate its own candidates: three persons, by a majority of six votes. It will be unfeasible for the Plenary to have a committee. In any case, it is foreseeable that these aspirants will have fewer chances of winning if an open presidential discourse continues, with massive effects, which will discredit them before the citizens. The President of the Republic has been doing so for months, against the entire Judicial Branch, while his reform was being gestated.

The aspirants to the position of Justice share common rules applicable to all aspirants to other federal judicial positions: they must submit a three-page essay justifying the reasons for their nomination and provide “five letters of reference from neighbors, colleagues or persons who support their suitability.” They must have technical knowledge for the performance of the position and be persons who “have distinguished themselves for their honesty, good public reputation, competence and academic and professional background in the exercise of the legal activity.”

The second problem is reducing the number of Supreme Court Justices (from 11 to 9) and changing the method of selecting the president of the Court. Whoever obtains the highest number of popular votes will be the Court’s president. In principle, the numerical reduction alone does not merit special critical considerations beyond the fact that it will increase the workload of the 9 Justices (it is understood that the presidency will now be able to propose draft resolutions). There will be a problem with the new president’s legitimacy since he/she will not be elected from among his/her peers. The two-year term of the presidency will be insufficient to consolidate a medium-term judicial policy in the highest Court.

Another significant change is that the Court’s presidency will no longer preside over the Judiciary Council, or rather, it will not preside over either of the two bodies that will replace the Council: the Judicial Disciplinary Tribunal and the Judicial Administration Body.

The third problem is modifying the voting system in the concentrated justice performed by the Plenary of the Court. The reform reduces from 8 to 6 the qualified vote necessary to invalidate laws. However, the transitory regime does not say how the Court should operate in these months (before the election). Considering that, at present, 11 Justices remain in office and that, in a short time, there will be 10 (on November 30 of this year, Justice Aguilar Morales concludes his term of office). At the same time, the new voting rule of 6 votes is in force.

The eleventh transitory article of the decree establishes that this reform must be interpreted textually, without “analogous or extensive interpretations”. Thus, it must be understood that today the Court in office can declare the invalidity of any general rule with its simple majority (eventually including, for example, the proper decree of constitutional reform to the Judicial Branch, which will soon be under analysis).

The fourth problem is the disappearance of the Supreme Court’s Chambers. According to the last annual report of the Court’s presidency, in 2023, the two Chambers resolved 2,623 cases (compared to 833 for the Plenary). With the transfer of these cases to the Plenary, it is evident that it will not have the same capacity to respond to an exponential accumulation of cases, which may be around 3,500 cases per year. This situation will imply the need to select the cases so that the Court will publicly discuss only the most relevant and transcendent. The Plenary will not be able to publicly debate all cases because it would be impossible, both humanly and chronologically.

The fifth problem is the duration in office. In 1994, the Constitution established that Justices would serve for 15 years. This solution was decisive because it allowed a staggered system of renewal where judicial tenure was not tied to the presidential six-year terms, which was positive for their decision-making independence. The reform established a non-extendable 12-year term. Now, there is a severe problem: the election of Justices will be tied to the elections of political powers. Since these are also now elective positions, there is a perverse effect: the same electorate that elects the executive and legislative branches will also elect the Justices. The ballot will specify which candidates each branch proposes.

The purpose behind this chronological arrangement cannot be reduced to reasons of austerity or economization of elections. It has to do with the majority forces that support the political power transferring their vote to the judicial candidates proposed by the Executive and the Legislature. These circumstances will potentially lead to an ideological identity of the three branches of government, leaving no room for the independence of the Court. Nor has the independence of the Federal Congress been guaranteed with this elective system.

The sixth problem concerns the requirements to become a Justice. Among them is the elimination of 35 years of age as the minimum age to be appointed, so there is now no age limitation. In addition, “an overall grade point average of at least 8 points, or its equivalent, and of 9 points, or its equivalent, in the subjects related to the position for which he/she is applying in the bachelor’s, specialty, master’s or doctorate” (it is understood that in any of them) must be accredited. It does not matter which university is involved. In addition, instead of having a law degree with ten years of seniority, as previously stated, now a “professional practice of at least five years in the practice of law” must be proven.

The 1994 reform established that the appointments of Justices should preferably be made among those persons who “have served with efficiency, capacity, and probity in the administration of justice or who have distinguished themselves for their honorability, competence and professional background in the practice of law” (emphasis added). This paragraph was eliminated by the reform of 2024.

A Necessarily Preliminary Conclusion

The future of the Supreme Court is not encouraging regarding the control of power or the counterweight it came to exercise over the last three decades in Mexico. The Supreme Court of 1994 has died of success.

It is difficult not to conclude that access to the office has been further trivialized. This conclusion does not mean that the requirements that were demanded before were ideal. In the previous system, for example, it could have been admitted that some Justices came from the judicial career or that no applicant came directly from any position in the public administration. However, some of the current requirements are bordering on the absurd. The opportunity has been lost to build a model beyond both schemes, in any case, with more demanding requirements. This goal was far from being the concern of our reformers.

One of the new Supreme Court’s most serious problems will be its new interpretative approach. We will no longer have a Court with a counter-majoritarian vocation but a pro-majoritarian one. We can expect a return to constitutional formalism, maximum deference to the legislator, and an automated exercise of the judicial function. If this diagnosis proves correct, it could lead us to regression of the human rights protection standards that we have worked hard to build and that are currently in force in constitutional case law.

Thus, constitutional interpretation with methodologies other than literal interpretation will be implicitly forbidden because it will immediately qualify as an “invasion of powers.” The threat of impeachment, with the qualified majorities of the ruling party in the chambers, will be latent, at least clearly, in the first half of the next six-year term. In short, we are on the verge of a Supreme Court obsequious to the legislative majorities and the prevailing political regime. Under these discouraging conditions, today’s relevant question is: for how long?

Suggested citation: Alfonso Herrera, Symposium on the Judicial Overhaul in Mexico Part 6: The Future of the Mexican Supreme Court, Int’l J. Const. L. Blog, Oct. 7, 2024, at: http://www.iconnectblog.com/symposium-on-the-judicial-overhaul-in-mexico-part-5-the-future-of-the-mexican-supreme-court/