Overruling the Executive: Judicial Strategies to Resist Democratic Erosion

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Author(s)Garcia-Holgado, Benjamin
Date Accessioned2025-01-24T18:10:41Z
Date Available2025-01-24T18:10:41Z
Publication Date2025-01-08
DescriptionThis article was originally published in Journal of Law and Courts. The version of record is available at: https://doi.org/10.1017/jlc.2024.30. © The Author(s), 2025. Published by Cambridge University Press on behalf of the Law and Courts Organized Section of the American Political Science Association. This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial licence (http://creativecommons.org/licenses/by-nc/4.0), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original article is properly cited. The written permission of Cambridge University Press must be obtained prior to any commercial use.
AbstractHow can autonomous apex courts with specific attitudes and role conceptions counter executive aggrandizement? This article theorizes two causal mechanisms through which justices can resist democratic erosion. The first mechanism involves apex courts employing judicial review to neutralize autocratic legalism by blocking strategies such as institutional conversion, replacement, and layering that executives use to expand their power. The second involves apex courts building coalitions within and beyond the judiciary, enabling diverse actors – including judges, political parties, the media, and NGOs – to leverage their unique resources against executive encroachment. I conceptualize these two mechanisms by combining theory-building process tracing with counterfactual analysis of an unlikely case of democratic resilience: Argentina from 2007 to 2015. Drawing on evidence from 125 elite interviews, over a thousand newspaper articles, hundreds of state documents, memoirs, and other primary sources, this article demonstrates how the Supreme Court nullified President Cristina Kirchner’s attempts to undermine freedom of expression and judicial independence, thereby contributing to democratic resilience.
SponsorNo funding was used for this article.
CitationGarcia-Holgado, Benjamin. “Overruling the Executive: Judicial Strategies to Resist Democratic Erosion.” Journal of Law and Courts, 2025, 1–30. https://doi.org/10.1017/jlc.2024.30.
ISSN2164-6589
URLhttps://udspace.udel.edu/handle/19716/35750
Languageen_US
PublisherJournal of Law and Courts
dc.rightsAttribution-NonCommercial 4.0 Internationalen
dc.rights.urihttp://creativecommons.org/licenses/by-nc/4.0/
Keywordsdemocratic backsliding
Keywordsexecutive aggrandizement
Keywordsjudicial independence
Keywordsjudicial review
TitleOverruling the Executive: Judicial Strategies to Resist Democratic Erosion
TypeArticle
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