Seeing the Whole Picture of the Debate in the Mexican Supreme Court: A Response to “When Judges Threaten Constitutional Governance: Evidence from Mexico”

–Roberto Niembro, General Director of Institutional Relations of the Mexican Supreme Court; UNAM and co-Chair of ICON-S Mexico

I write this post in response to the column When Judges Threaten Constitutional Governance: Evidence from Mexico because it wrongly suggests that the application of voting rules by the Chief Justice Arturo Zaldívar during the session of the Mexican Supreme Court’s Plenary on April 7, 2022, represents a case of a towering judge damaging constitutional governance. I want to manifest from the outset to the reader that I work at the Supreme Court, and I genuinely think that one must take into account every element in order to understand what happened during the session.

According to Rehan Abeyratne and Iddo Porat, towering judges are ‘individually distinguished’ from their colleagues and ‘have a substantial influence on their constitutional systems’. I think such is the case of Chief Justice Zaldívar in the three dimensions proposed by the authors (political, institutional, and jurisprudential). However, I consider this is not the place to enter such a discussion, and I want to focus instead on the detrimental effect hinted by the column. As will be shown in this post, there was no threat to constitutional governance in Mexico posed by the Chief Justice.

From my point of view, what arose in the session was a collective doubt about the way to count votes, so the Chief Justice expressly asked (as it could not be otherwise) the participating Justices in the deliberations whether their votes should be counted for the invalidity of the challenged dispositions or not. In my opinion, the account given in the column was partial, as it omits some facts. Thus, the complete view of what happened does not allow us to assert that there was a change of the voting rules. In any case, it could invite us to reconsider the convenience of transmitting live the sessions of the Supreme Court’s Plenary, but this is not a case that can make us think that we are facing a towering judge abusing his role.

There are some aspects that the reader unfamiliar with the Plenary sessions of the Mexican Supreme Court should take into account. First, the sessions are broadcasted live through the Supreme Court’s television channel and its social media. Second, there is a public transcript of the sessions. Third, the votes are counted by the Secretary-General of Accords of the Supreme Court, who is present during the sessions, and the Justices can express their disagreement at any time if their votes are not being counted correctly. Fourth, the final approval of the minutes that faithfully reflects the session is made until the beginning of the next Plenary session.

The reader can corroborate my account by watching the Plenary session of April 7 or reading its transcript. As the quoted column rightfully says, Justice Aguilar Morales posed the question if the eight needed votes against articles 3, fraction V, 4, fraction VI, 26, and 53 of the LIE had been reached, since two Justices, Gutiérrez Ortiz Mena and González Alcántara Carrancá, expressed different reasons to consider they were unconstitutional. I want to stress that the question regarding the count of these two Justices’ votes was expressly put into discussion, so everyone present at the session knew what the Chief Justice was asking. In light of Justice Aguilar Morales’s question, the Chief Justice asked Justice Gutiérrez and Justice González Alcántara on nine occasions (see pp. 119, 120, 121, 122, 123 of the session’s transcript) to please clarify to the Court’s Plenary how their votes should be counted because, the Chief Justice stated, ‘on that depends that the dispositions are invalidated or the action is dismissed, definitely’ (p. 123), to which Justices Laynez Potisek and Aguilar Morales immediately nodded. In response, Justice Gutiérrez stated that his vote was for the invalidity, and Justice González Alcántara said: ‘My vote here is for the validity’.

After this intervention and towards the end of the session, the Secretary-General of Accords made a recount of the vote count of the resolution items, in which it was clear that only seven votes had been reached for the invalidity and the action was dismissed, to which the Chief Justice asked the Plenary if the adjusted resolution items were ratified. No Justice expressed his or her disagreement stating that his votes had been incorrectly counted. The Justices discussed this issue again in the private session of April 19 and in the public session of that same day, expressly considering the voting record of the session of April 7, 2022. In my opinion, the facts here recounted allow us to see that there are plausible arguments that cast doubt on the thesis that there was a change in the voting rules and that this was a towering judge “threatening constitutional governance”.

Now, the second point I would like to reflect on regarding the column’s criticism of the conduct of the session is how we conceive the participants in the deliberation and the negative incentives generated by televising public sessions. First, the criticism of the conduct of the April 7 session shows, on the one hand, an extremely suspicious view of the Chief Justice and, on the other, a completely naïve one of some Justices. Second, we must keep in mind that broadcasting live Plenary sessions is an exceptional situation in comparative law which makes deliberations a bit stiff, making it very hard for a candid exchange of reasons between Justices to take place, in contrast to what happens in private sessions. Furthermore, in the case of Mexico, live broadcast has produced a significantly high number of concurring votes on issues decided in Plenary sessions, which prevents having a ‘Court’ doctrine and does not happen on the issues decided in Chamber sessions, which are private. It even makes it difficult for Justices to publicly express their methodological or substantive doubts, since media pressure makes it complicated to openly acknowledge them.

In my opinion, this was perhaps what happened during the session of April 7 for, according to his explanatory vote on the voting of the acción de inconstitucionalidad 64/2021, Justice González Alcántara considered that what was being voted at the session, following the project’s methodology, was not necessarily the invalidity, but rather if the arguments in each section were founded or unfounded, so he considers that new rules of debate for the Supreme Court should be issued. The lack of precision on normative sources regarding who is in charge of the decision on how to count their votes (the Plenary or each Justice in particular) is also highlighted by Justice Pardo Rebolledo in his explanatory vote. This way, the deliberative shortcomings created by live broadcasting sessions, together with the lack of precision on normative sources, should lead us to seriously reconsider if the benefits of live broadcasting in terms of transparency and accountability are sufficient to assume such costs.

Finally, I disagree with the open question (“it is also not entirely clear/too early to say”) posed at the end of the column, according to which this may be a case of ‘abusive judicial review’. For Dixon and Landau, abusive judicial review is that which ‘intentionally undermines the minimum core of electoral democracy’. Regarding the doubt about the vote count for the unconstitutionality of some of the dispositions of the LIE, it is not clear at all that the Chief Justice, or any other Justice, intended to affect the minimum core of electoral democracy. The challenged legislation did not regulate any aspect of electoral democracy or power distribution but established a new public policy on the electricity industry that has generated very strong responses from the affected economic interests. In my opinion, what we witnessed during the April 7 session was a collective doubt by the Justices about the way to count the votes, so the Chief Justice expressly asked the participants in the deliberation whether their votes should be counted for the invalidity of the challenged dispositions or not. I believe that the question posed to the Justices was clear, as were the answers. What we read in the column When Judges Threaten Constitutional Governance: Evidence from Mexico is rather a problematic use of constitutional categories which are intended to denounce other types of phenomena.

Suggested citation: Roberto Niembro, Seeing the Whole Picture of the Debate in the Mexican Supreme Court: A Response to “When Judges Threaten Constitutional Governance: Evidence from Mexico,” Int’l J. Const. L. Blog, June 29, 2022, at: http://www.iconnectblog.com/2022/06/seeing-the-whole-picture-of-the-debate-in-the-mexican-supreme-court-a-response-to-when-judges-threaten-constitutional-governance-evidence-from-mexico/