RIO DE JANEIRO, BRAZIL – Argentina has a problem with its Supreme Court. The highest Court of the country and head of one of the three branches of government, together with the Executive and the Legislature, is in the grip of fratricidal disputes among its members, the conflictive succession of its presidency, and an unexpected resignation that left it with only four of its five members.
The Court has been discredited for decades. From the “automatic majority” of the 1990s, when rulings were drafted at the pleasure of the then Government, it underwent an auspicious reform during Kirchnerism in the early 2000s. Still, the political noise has once again damaged its reputation.
The composition of the Court is a sensitive issue in Argentina because this is where corruption cases involving high-ranking officials and other officials end up, sooner or later.
That is why politicians take note of the internal divisions. Last September 23, the Court was in the news for a hasty and messy succession in the presidency. On that day, Judge Horacio Rosatti replaced Carlos Rosenkrantz with three votes: that of his predecessor, that of another judge -Juan Carlos Maqueda-, and his own.
The other two justices on the Court, Ricardo Lorenzetti and Elena Higthon de Nolasco, marked their disagreement by absenting themselves from the vote. The succession crisis was not resolved when Higthon de Nolasco resigned without notice, leaving the Court with four members.
The case of the only woman on the Court was particular: she had surpassed the 75 years of age that the Constitution sets as a limit for the supreme court justices, and she had remained in her position thanks to a special leave.
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When Highton de Nolasco packed her bags, Clarín, Argentina’s largest daily newspaper, headlined on its front page that the government had lost “its only vote in the Court”.
The president, Alberto Fernández, then ironically asked who were “the four remaining votes” in an institution that is supposed to be independent of politics.
Lorenzetti, Highton de Nolasco’s ally and president of the Court between 2007 and 2018, gave a series of interviews where he did not hide the magnitude of the crisis: he denounced that the Court was prey “of internal transcendences”.
In other words, if it is normal for judges to “speak for their rulings”, the leaks from within the Court itself were “a problem that generates confusion” in society. Lorenzetti does not speak just for the sake of saying: two weeks ago, he tried to regain the presidency that, according to his reading, was taken away from him three years ago by the Government of Mauricio Macri.
When it became evident that he could not block Rosatti, he did not vote.
“The Court is fractured,” warns constitutionalist Andrés Gil Domínguez, “and that can affect its functioning or make it more complex.” “This Court is very malleable,” adds a federal judge who prefers not to give his name, “it has been so far. Rosenkrantz is opposed [to Kirchnerism], the others are not”.
Marcelo Galle, president of the Association of Magistrates, prefers to speak of “differences” rather than “fracture”. “In a collegiate body, there is the diversity of opinions, and its members have positions and defend them,” he says.
The history of the Argentine Court since the return to democracy in 1983 is one of permanent tension between independence and submission to political power.
In the 1990s, President Carlos Menem increased the number of judges from five to nine and formed what, in derision, was called “the automatic majority” of five against four.
In 2002, with the country immersed in the most severe economic crisis in its history, the Congress moved forward with impeachment proceedings against six of the nine members of that Court, which had surrendered to Menem.
A year later, President Néstor Kirchner established a more participatory and transparent system for the election of judges. In 2006, the number was again reduced by law to five supreme justices.
However, the vices have returned, and tensions between judges and political power are again at the surface.
In addition to the internal fights and ambitions within the Court, there is now the need to choose a successor for Highton de Nolasco. The Government is a month and a half away from a crucial Legislative election where it may lose control of the Senate. The imminence of a defeat has tightened the ruling Peronist coalition.
This is no time for agreements. “Within the discretion that corresponds to the President, we all infer that it seems that it will be a woman”, says Galle from the Association of Magistrates. There is consensus, however, that the new name will take time to appear. Gil Domínguez says that “with the political fracture, it is difficult to think of a replacement in the short term”.
“Either they find a candidate with a lot of consensus, or perhaps there is the option of expanding the Court,” he argues.
The expansion of the number of supreme court justices is fuel for lengthy disputes. Argentina already had a nine-member Court, a seven-member Court, and the current five-member Court. The seven-member one worked very well, with five as well.
“It is the smallest Court in Latin America along with that of Uruguay. Menemism expanded it to nine, and we do not have a good memory because it was the Court of the automatic majority, it was a scandal,” recalls constitutionalist Jorge Vanosi. There are factors related to ideological plurality, gender diversity, which the enlargement would permit solutions”, says Gil Domínguez.
Vice-President Cristina Fernández de Kirchner defends the idea of expanding the number of members of the Court, which she considers an enemy of the government.
In a letter published days after the ruling party’s defeat in the primary elections of last September, she accused the court of “conditioning or extorting” the government to complicate the economic management and of leading judicial persecution against leaders of the ruling party.
The Court is currently analyzing 17 appeals filed by Fernández de Kirchner in three cases of alleged corruption. However, the changes in the Court are conditioned by the Congress, where the government does not have the necessary votes to move forward. The changes desired by the Vice-President will have to wait.