Symposium on the Judicial Overhaul in Mexico Epilogue: Abusive Judicial Reform in Mexico

—Irene Parra Prieto, IACL-AIDC blog, Rosalind Dixon, University of New South Wales, & David Landau, Florida State University College of Law

[Editors’ Note: This is the 9th entry, and the “Epilogue,” 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.]

I           Introduction

Mexico has just amended its Constitution, making changes that constitute a clear danger to the health of Mexican democracy – or that are unambiguously “abusive” in nature (see here, here).  This includes major changes to how the Supreme Court is appointed, involving provision for the popular election of all judges.  

In this post, we argue that the abusive nature of these changes demands an urgent and decisive response from internal and external actors alike.   The international community should continue loudly to condemn them and put pressure on Mexican leaders not to implement them in the coming months.  As well, the Supreme Court of Mexico should seek to deprive these changes of effect – either via striking down relevant implementing legislation, or via some form of procedural or substantive unconstitutional amendment (UCA) doctrine.

II         Judicial “Reform” in Mexico

Mexico is an imperfectly democratic constitutional system: for over 70 years, until 2000, Mexican elections were dominated by the Institutional Revolutionary Party (“PRI”).  But

the 1917 Mexican Constitution also contains a strong system of constitutional checks and balances – including a relatively powerful and independent Supreme Court. Amendments to the Constitution in the 1990s gave the Court broad powers of judicial review, which were further expanded in 2011. And while the Court has faced criticism, it has emerged over the last 20 years as an essential arbiter between the branches of government, states, and independent agencies

This role is threatened by the recent judicial reforms: These reforms shift the process of appointing justices, magistrates, and judges to a system of popular elections.This new process, aligned with general elections, allows citizens to directly elect key judicial figures, including Supreme Court justices, magistrates of the Federal Electoral Tribunal, and members of the new Judicial Discipline Tribunal. Historically, Supreme Court justices were nominated by the president, with the Senate selecting one from a shortlist, while judges and magistrates were appointed based on merit through the Federal Judiciary Council.The proposed shift to popular elections represents a fundamental departure from this previous merit-based system.

Under the new structure, judicial circuit magistrates and district judges would serve nine-year terms, with the possibility of re-election, while members of the Judicial Discipline Tribunal would serve six-year terms without the option of re-election. Additionally, the reform mandates the removal of all current Supreme Court justices by August 30, 2025, while also reducing the number of justices from 11 to 9.  Their terms would be reduced from 15 years to 12, with no possibility of re-election. The Court’s chambers would be abolished, requiring it to function only in plenary, while the presidency of the Court would be rotated every two years, determined by a popular vote.

The overhaul’s implementation will occur in two stages. On June 1, 2025, elections will be held to fill all seats on the Supreme Court, vacancies in the Federal Electoral Tribunal, positions on the Judicial Discipline Tribunal, and half of the circuit magistrates and district judges. Elected officials will take office starting September 1, 2025. The remaining circuit magistrates and district judges will be elected in 2027. It is estimated that in 2025, 10,815 candidates will compete for 1,481 judicial positions, while in 2027, the number of candidates will increase to 31,345 for 5,229 positions. Citizens will select from 81 candidates for the nine seats on the Supreme Court, marking a dramatic shift from traditional electoral methods. Voters will now be required to write in the names of their chosen candidates, departing from the established practice of selecting a party logo.

The election process will begin with the Senate issuing a call for elections, detailing the stages, dates, and positions to be filled. Each branch of government will propose candidates, who will then be evaluated by a committee of five legal experts. Once candidacies are approved, they will be submitted to the Senate and forwarded to INE, which will oversee the election process. The reform introduces new requirements for candidates, including a minimum GPA of 8.0 in law and 9.0 in subjects relevant to the judicial positions they seek. The previous minimum experience requirement will be eliminated, and candidates must submit statements of purpose and references attesting to their ethical and professional qualifications.  

III        Abusive constitutionalism in action

Changes of this kind constitute what two of us have previously referred to as “abusive constitutionalism.”  Abusive constitutionalism is the use of the tools of constitutional change  to erode the core institutions or rights that democracy requires to survive.  Elsewhere, Dixon and Landau have labelled this the “democratic minimum core.” The judicial overhaul in Mexico utilizes the constitutional amendment mechanism to attack the democratic minimum core.

The idea of the democratic minimum core derives from two complementary sources: the overlap among democratic and constitutional theorists about what democracy requires, at minimum, to realize its aims of empowering citizens in a process of self-government based on equal dignity for all; and the overlap among actual extant democracies in the minimum set of constitutional guarantees they have in place, as part of their system of constitutional self-government.

We further suggest that the minimum core consists of three broad elements: (i) a commitment to regular, free and fair, multi-party elections; (ii) the protection of political rights and freedoms; and (iii) a set of institutional checks and balances necessary to ensure (i) and (ii). The judicial overhaul threatens this third foundational commitment to a minimum set of checks and balances. It threatens to undermine the role conception of the judges as answerable to the      Constitution rather than the public and will likely deliver judges with clear ties to the party that controls the presidency and the Congress. 

The new President, Claudia Sheinbaum has reiterated her commitment to continue the legacy of López Obrador after she won the presidential election with almost 60% of the popular vote. The coalition Sigamos Haciendo Historia — led by Morena — secured a supermajority in the Chamber of Deputies with 364 out of 500 seats and came close to a supermajority in the Senate, winning 83 out of 128 seats. This is also likely to translate into support for Morena candidates at any judicial election in the near future, which in turn is a result that would almost entirely undermine the independence of the Court. 

There is also strong evidence that these changes were intended to have such an abusive effect. The changes were proposed by former President López Obrador as the last-minute act of a lame-duck president. They followed a dispute between Obrador and the judiciary, which he frequently targeted during his mañaneras, daily 7:00 a.m. press conferences, where he accused the courts of corruption, overstaffing, and excessive spending. His efforts to undermine the judiciary intensified after the Court ruled parts of his “Plan B” bill, designed, among other things, to weaken the electoral authority (INE), unconstitutional.

And the judicial overhaul was presented as part of a broader suite of changes likely to undermine political as well as broader civil rights: these other measures included expanding the military’s role in everyday policing under the Ministry of Defense, removing safeguards by allowing the army to undertake any legally permissible activities during peacetime, dissolving seven constitutionally autonomous agencies and eliminating proportional representation in the electoral system.

A final marker of abusive change is the way in which the changes have been justified.  Abusive constitutional change, two of us have argued, often involves a form of abusive legitimation strategy that trades off both pre-existing internal processes and an appeal to foreign and international democratic models and precedents.  This is the essence of “abusive constitutional borrowing” as a legitimation strategy (Dixon and Landau 2021): it depends both on implicit appeals to democratic precedents at home and abroad, and explicit comparisons with (a distorted) version of foreign or international precedent.  

Here, comparisons have been made to the United States, and a number of states in the US that provide for the popular election of judges and to Bolivia, which adopted popular elections for high court judges in 2009 (in potentially abusive circumstances).  These comparisons have been explicitly drawn by Morena-aligned supporters of the reforms.

The comparison with Bolivia is dubious because the record of constitutional and high-court justice in Bolivia has itself been viewed as poor, and the Plurinational Constitutional Tribunal and other courts as lacking independence from the ruling party, while the public has suggested a high degree of dissatisfaction with the system (in the form of blank votes). Thus, the Bolivian experience stands more as a “warning” for Mexico rather than a positive example.

The U.S. comparison is flawed because of important differences between the two systems, some of which are worth mentioning here. First, the main task of U.S. state judges is to determine criminal punishment and administer ordinary rather than constitutional law. Second, state judges are subject to the constraints imposed by the US Constitution, a document interpreted by (even if increasingly partisan) appointed, life-tenured federal judges. Third, the longstanding inclusion of some electoral processes for U.S. judges at the state level did not involve anything remotely like the mass firing of existing judges that Mexico is likely to embark. This kind of massive and rapid turnover is especially ripe for abuse. Reliance on the U.S. as justification is thus highly acontextual and selective in nature.

IV        Countering abusive change

Once it commences, abusive constitutional change can be difficult to halt.  The first step is to notice that it is occurring and be willing to call it out for what it is: that is, an abuse of constitutional democracy, and its logic and processes, rather than a legitimate “reform.”

Calling abuse out can have large or small effects depending on who the speaker is – think of the thousands of Israelis who took to the streets to oppose the earlier efforts by Prime Minister Benjamin Netanyahu to pass abusive changes to the judiciary in Israel. The sheer scale of these efforts, and the status of many of those who joined the protest (including senior members of the Israeli military) helped defeat the bulk of them in the legislature, and may also have lent weight to the Israeli Supreme Court’s decision to strike down a piece of the changes that did pass. 

The international community also often has an important role to play; that was certainly true in Israel.  And we think that it is also true in Mexico.  Efforts of this kind have already begun, via the response of the US and other democratic allies to these changes: for instance, criticism by the US Ambassador to Mexico, the NY Bar , the Inter-American Commission on Human Rights, the International Commission of Jurists, the International Bar Association, the and the International Association of Judges      .  In scholarly circles, there has also been an open letter signed by dozens of international scholars.  But more can and should be done to increase this international response. 

Another key question is whether there is anything can be done by Mexican courts to stop this change from taking effect. This question has already been the subject of some discussion during this symposium. One possibility is that the Supreme Court could wait for a law clarifying the process by which the reforms will be implemented, and then strike down that implementing law as unconstitutional. Another possibility would be for the Court to hold that the amendments were enacted via a flawed process, and hence must be re-enacted to be valid.  In the lead-up to the reforms, a federal tribunal in Mexico considered arguments of this kind when issuing an injunction to halt the publication of the reform. Notwithstanding, the president ultimately ignored the injunction and proceeded with the promulgation of the reform.                    But there is clear precedent for approach elsewhere – for instance, in the recent decision of the Supreme Court of Kenya in the BBI Case, which struck down a significant set of potentially abusive constitutional reforms.

The final option would be for the Court to strike down the amendment on substantive grounds, as an improper substitution (rather than amendment) of the 1917 constitution, and thus as an unconstitutional constitutional amendment (See here, here) . We believe that such a decision, albeit novel under Mexican constitutional law, would have a strong normative justification as a means of protecting the democratic minimum core.The doctrine of unconstitutional constitutional amendment meets its highest justification as a mechanism to stop or at least act as a “speed bump” to slow efforts to carry out abusive constitutional change. Moreover, there is ample precedent for such a decision in other contexts. These include the aforementioned Israeli case from earlier this year, which used the unconstitutional constitutional amendment doctrine to strike down an amendment to the Israeli Basic Laws that would have ended the Supreme Court’s ability to conduct “reasonableness” review. Also in recent history, the Indian Supreme Court used the basic structure doctrine (its variant of the unconstitutional constitutional amendment doctrine) to strike down sweeping changes to the appointment processes for the Supreme Court and other courts that would have given political actors more control over appointments, in a context of broader efforts by the Modi administration to undermine democracy in India.

Whichever path the Court were to take, there is a clear challenge in timing: any action against the overhaul has a narrow window within which to succeed; otherwise, it will be the very judges elected under the new procedures that are asked to invalidate their operation or effect. This is true of any effort to counter abusive constitutional change.  An effective response is usually possible only within a fairly narrow window of time – before relevant changes have already eroded the independence of key institutions capable of engaging in legal resistance.

V         Conclusion

The current judicial reforms in Mexico pose a clear and present danger to the minimum core of Mexican democracy – and the commitment to institutional checks and balances that this entails. For this reason, they should be labelled for what they are: abusive constitutionalism.

The harder question is what, if anything, can be done in response, either by the international community or the Mexican Court itself. We suggest there are still some important steps that can be taken. The time to take them is now.

Suggested citation: Irene Parra Prieto, Rosalind Dixon, & David Landau, Symposium on the Judicial Overhaul in Mexico Epilogue: Abusive Judicial Reform in Mexico, Int’l J. Const. L. Blog, Oct. 10, 2024, at: http://www.iconnectblog.com/symposium-on-the-judicial-overhaul-in-mexico-part-9-abusive-judicial-reform-in-mexico/