Supreme Court of Argentina

The Supreme Court of Argentina was designed as a constitutional check on government, but its history in the account is chiefly one of institutional vulnerability: presidents repeatedly gained influence over the Court by removing or adding justices. Its changing composition shows how a formal constitutional institution could be made to serve executive power when broader political institutions did not provide durable support for judicial independence.

Constitutional Role and Political Setting

The 1853 constitution created the Supreme Court with duties similar to those of the United States Supreme Court. In 1887, the Argentine Court assumed authority to decide whether particular laws were constitutional. That power gave it the potential to become an important constraint within the country’s political institutions. The potential remained fragile, however, because Argentina’s wider political and economic system was described as highly extractive, without pluralism or the broad social empowerment that could sustain an independent court.

The contrast is between a court’s formal authority and the political conditions needed to make that authority effective. A constitutional power to review laws could not by itself ensure that presidents and legislators would respect judicial independence. When political actors could alter the Court’s membership without facing lasting institutional resistance, its ability to constrain executive power was exposed to the same struggles that shaped the rest of the political system.

Perón’s Impeachment Campaign

Juan Domingo Perón won the presidency in 1946 after building a political coalition with trade unions and the labor movement, a base he had developed after rising to prominence following the 1943 military coup. Shortly after his victory, his supporters in the Chamber of Deputies proposed impeaching four of the Court’s five members. One charge concerned the Court’s acceptance of the legality of the military regimes of 1930 and 1943—a charge that carried an irony, because Perón had played a key role in the 1943 coup.

Another dispute concerned the Court’s decision to strike down legislation. Shortly before Perón’s election, it had ruled his new national labor relations board unconstitutional. As Franklin D. Roosevelt had criticized the United States Supreme Court during his 1936 reelection campaign, Perón attacked the Argentine Court in his 1946 campaign. The impeachment initiative thus joined accusations about the Court’s earlier conduct to a direct conflict over its power to invalidate government policy.

Nine months after the impeachment process began, the Chamber impeached three justices; the fourth had already resigned. The Senate approved the motion, and Perón appointed four new justices. The result was more than a change in personnel: the Court’s ability to constrain the president was substantially weakened. The newly appointed judges, for example, upheld the constitutionality of Ricardo Balbín’s conviction for disrespecting Perón. Balbín led the Radical Party, the principal opposition to Perón, and the ruling illustrated how a reshaped Court could validate actions against political opponents.

Court-Packing Becomes a Pattern

Perón’s successful intervention established a precedent. Thereafter, the account says, it became normal for each new Argentine president to handpick Supreme Court justices. The Court, which might have imposed limits on executive power, was left without a secure institutional basis for independence. Perón himself was removed by another coup in 1955, and Argentina then experienced a long succession of military and civilian governments. Both kinds of regimes selected their own justices, extending the practice beyond changes between elected administrations and military rule.

The pattern persisted even when democratic government changed hands. In 1990, Argentina underwent a transition from one democratically elected government to another. The sitting justices had been appointed after the 1983 return to democracy by the Radical Party president Raúl Alfonsín. The transition itself offered no evident reason for the incoming president to replace them, but Carlos Saúl Menem, the Perónist Party president-elect, had already pressed justices to resign. He offered Justice Carlos Fayt an ambassadorship; Fayt rebuffed the offer by sending Menem a copy of his book, Law and Ethics, inscribed with the warning, “Beware I wrote this”.

Within three months of taking office, Menem sent a bill to the Chamber of Deputies to increase the Court from five members to nine. He argued, among other things, that the Court was overworked, echoing an argument Roosevelt had used in 1937. The bill quickly passed both the Senate and the Chamber. Menem then appointed four justices, giving himself a majority on the Court. This route differed from Perón’s impeachment campaign, but its institutional effect was similar: the president altered the Court’s composition to secure greater control over it.

Consequences and Institutional Significance

Menem’s victory over the Court formed part of a broader effort to loosen political constraints. His next step was to rewrite the constitution to remove the presidential term limit, allowing him to run again. After reelection, he tried to rewrite the constitution once more, but factions within his own Perónist Party resisted his personal domination and stopped him. In this episode, the check came not from the Court or a broadly supported system of institutional constraints, but from conflict inside the ruling party.

The book places the Court’s weakened independence within Argentina’s recurring political pattern. Since Perón’s rise in the 1940s, the Perónist Party had dominated elected politics through a powerful political machine, patronage, vote-buying, and corruption. Military regimes and civilian governments differed in form, but both could select justices; elected government therefore did not itself guarantee pluralism or an independent judiciary. The account also points to the impunity with which Argentine governments could override property rights and expropriate citizens, as illustrated by El Corralito.

The Court’s history contrasts with the rule-of-law logic described elsewhere in the book. Where laws apply equally and no person or group stands above them, courts and legal constraints can help preserve a pluralistic political order. In Argentina, however, the Court lacked reliable support from broad segments of society willing to defend its independence. Its constitutional role was therefore repeatedly vulnerable to executive pressure, and the precedent of presidential control made an institution that might have checked power part of the cycle through which that power was consolidated.