A Short Political History of the Argentine Supreme Court

According to the Argentine National Constitution, the Argentine Nation adopts the federal republican representative form of government. The Judicial Power of the Nation is vested in a Supreme Court and in such lower courts as Congress may constitute in the territory of the Nation. The President appoints Justices of the Supreme Court, but the consent of the two-thirds of the senate is required. Supreme Court justices can only be removed through impeachment carried out by the senate. Since the 1994 amendments to the constitution, the Council of the Magistracy composed of members of Congress, magistrates, and university professors is in charge of the selection of judges and of the administration of the Judicial Power.

Here’s an outline of the history of the Argentine Supreme Court. In 1930, the first coup d’etat against a constitutional government took place: President Hipolito Yrigoyen was overthrown and Congress was disbanded by the military. The members of the court were not changed by the military. When faced with the question of whether the military government was legitimate, the court stated that, if they respected the bill of rights and the judiciary, de facto executive and legislative powers were valid – this is known as the “de facto doctrine” in Argentine law. This doctrine is infamous because it would later be used by the different Supreme Courts to uphold the seizing of power in several following coups.

After the military dictatorship – that lasted from 1976 to December 1983 – the new constitutional Supreme Court was installed. The “Alfonsin Court” faced very important constitutional challenges. First, it disposed of the “de facto doctrine” and, thus, left aside the jurisprudential lineage that had started in 1930. In Aramayo (CS, 2/14/84), the Court was faced with the claim of a judge who had been sacked in 1976 and asked for reinstatement. The Court held that the restoration of constitutional order required that provincial and national powers ratify or throw out, explicitly or implicitly, the acts of the de facto government. The Court did not say that all the norms promulgated by the de facto government were invalid because, otherwise, judicial insecurity would follow. But it made it clear that de facto norms were not valid per se. Second, the Court adopted a new interpretation of substantive constitutional clauses that amounted to upholding the values of political liberalism. For the Court of the dictatorship, the state had to impose certain values on the citizenry. In contrast, when discussing criminal sanctions against the possession of drugs for personal use, the “Alfonsin Court” held that possessing drugs is a private action with which the state cannot interfere (see Bazterrica CS 8/29/86), Justice Petracchi famously wrote that the Constitution “excludes the possibility of invasions on the part of state organs, especially through criminal punishment, into conduct that is part of the individual sphere, with the sole support of perfectionist or paternalistic ethical positions…” In the same vein, when it discussed the ban of remarriage by divorced persons, the Court held that remarriage is a private action and that, unless there is harm to third parties, the state cannot interfere with the private decision of autonomous individuals (Re Sejean CS 12/27/86).

In 1989, Carlos Menem was elected President. In 1990, he increased the number of Supreme Court justices from 5 to 9. The “Menem Court” overruled the decisions of the “Alfonsin Court” on the “de facto doctrine” in Peralta (CS 12/27/90) and Godoy (CS 12/27/90). In Godoy, referring to de facto norms, the Court held that “this Court took it as certain that these acts continued in the following constitutional period – as long as they were not overruled nor revoked – with authority and effectiveness equivalent to laws issued by de jure governments because they are originally valid[…] or because their “actual force” legitimates them…” In other words, the Court seemed to be saying that force, but nothing else, is the source of normativity. With regards to liberal freedoms, in Re Montalvo (CS 12/11/90), the Menem Court overturned the Bazterrica ruling and famously held that whenever a private action such as possessing illegal drugs could leave to an offense to “public morality”, the state is called to interfere with it. In a similar vein, in C.H.A., (CS ) the Menem Court upheld the administrative decision that would not give status of “legal person” to the Argentine Homosexual Community because it would not promote the “common good.” The Menem Court was famously known as the court of the “automatic majority.” The phrase was meant to describe the fact that, allegedly, Supreme Court justices appointed by Menem would rule in favour of the interests of Menem’s government.

After the economic crisis of 2001, the resignation of President De la Rua, and a 18 months period of political instability, in a television address to the nation, President Kirchner called for the impeachment of Supreme Court justices. Some justices resigned, and others were impeached. Kirchner appointed 4 of the current 7 Supreme Court Justices – two of those appointments are women: for the first time, a woman was appointed to the Supreme Court. Also, a decree by Kirchner stated that candidates are presented for consideration for 3 months. Nominees are advertised in the website of the Ministry of Justice and citizens can discuss the nomination. After this period of discussion, the President presents the candidates to the senate, which has the last word.

The “Kirchner Court” has made relevant decisions regarding human rights. In June, 2005, the Supreme Court’s historical ruling in Simón declared the unconstitutionality of the so called “due obedience” and “punto final” laws. Those laws prevented the punishment of human rights violators during the military dictatorship 1976-1983. The decision is important because it seems to be the starting point for yet a new stage in the transition from dictatorship to democracy in Argentina. Also, in Asociacion Lucha por la Identidad Travesti, the Court overruled the “Menem Court” decision in C.H.A. and gave status of legal person to the “Asociacion Lucha por la Identidad Travesti.” Presumably, that case reflects a comeback of the Supreme Court to the values of political liberalism

The main problem of successive conformations of the Argentine Supreme Court has been its lack of independence of the executive branch. The appointments by Kirchner are usually referred to as positive in that, in contrast to what was done in the 90s, the appointed judges are regarded as prestigious jurists. In this sense, the “Kirchner Court” has a historical opportunity. Whether the court will take it or not remains to be seen in the following years…