The political determinants of judicial dissent: evidence from the Chilean Constitutional Tribunal

Abstract

Many judicial scholars argue that judicial dissent stems from partisanship or political differences among judges on courts. These arguments are evaluated using the variation in political backgrounds on a constitutional court, Chile’s Constitutional Tribunal, using case-level and vote-level data from 1990 until 2010. The analysis shows that the rate of dissent rises after major reforms to the powers and judicial selection mechanism of the Tribunal in 2005 and that the dissent rate corresponds to periods of greater partisanship on the court. Further, decisions regarding the unconstitutionality of laws intensify the propensity to dissent at both the case and judge level. In further examination of variation across judges’ voting records, judges who have identifiable partisan associations of any kind are generally more likely to dissent than those with limited political backgrounds.

Dissent Aversion and Sequential Voting in the Brazilian Supreme Court

“…Here, put simply, dissent arises from political disagreement between judges. This approach has found empirical confirmation in a multitude of contexts, from the U.S. Supreme Court (e.g., Wahlbeck et al ) to the various constitutional courts of Europe (e.g., Hanretty () on Portugal and Spain; Hanretty () on Estonia; Bricker () on Eastern‐European courts) and Latin America (e.g., Tiede () on Chile).…”

O Supremo Tribunal Federal E a Mudança Constitucional

“…Num intervalo de tempo mais próximo ao analisado para o STF, de 1988 a 2017, a Suprema Corte dos EUA decidiu pela inconstitucionalidade de leis questionadas em 6,1% de um total de 2.753 casos apreciados. 12 De 1990 a 2010, o Tribunal Constitucional do Chile declarou leis inconstitucionais em 19,7% dos 933 casos que julgou (Tiede, 2015). Na Suprema Corte do Uruguai, de 1990 a 2018, de 3.044 decisões definitivas em controle de constitucionalidade, 867 resultaram na declaração de inconstitucionalidade (ao menos parcial) de um ou mais dispositivos legislativos de 46 leis (Antía e Vairo, 2019), isto é, o tribunal reconheceu inconstitucionalidade em cerca de 28,5% das decisões.…”

Mixed Judicial Selection and Constitutional Review

“…For Chile’s CT, constitutional reforms that came into force in February, 2006 gave elected, rather than nonelected, politicians a greater role in the appointment of Tribunal judges, the former now appointing 70% of the judges (see Carroll & Tiede, 2011 and Tiede, 2016 for an analysis of these reforms). 8 After the reforms, the Supreme Court continued to select three judges by secret vote as it had done previously, but these judges are now required to be from outside the Supreme Court (see Pardow & Verdugo, 2015).…”

“… 8. Carroll and Tiede (2011) and Tiede (2016) focused on comparing judges’ behavior on the CT before and after significant constitutional reforms using data spanning from 1990 to 2010 and on cases of abstract and concrete review. In Tiede (2016), judges’ party alone, without institutional selectors, was tested on judges’ likelihood to dissent, not to strike down laws. …”