In recent decades, the judicialisation of fundamental human rights – access to healthy environments, adequate housing and social welfare, among others – has dramatically expanded the activities of courts and judges, particularly in the Global South. High courts and judges seeking to create judicial impacts in fragmented states have not only evaluated the demands of new legal constituencies but also experimented with tools such as participatory monitoring and oversight to place political pressure on rulings’ targets.
Sandra Botero examines this trend in her recent book, Courts that Matter, a refreshing multidisciplinary work combining comparative political analysis and legal historical methods to explain changing norms of social and political interaction within judicial spheres in the Global South. Building on evidence from archival sources, 130 semi-structured interviews and participant observation collected over a year and a half in the field, Botero studies how supreme courts in three countries – Argentina, Colombia and India – have leveraged court-promoted monitoring and civil society legal constituencies to improve the likelihood of enforcing structural rulings on socioeconomic issues. Her in-depth analysis of judicial spaces in these contexts over time suggests that tribunals, despite being minoritarian, non-elected institutions, can reinforce democratic consolidation in contexts where institutions exhibit weak compliance.
As such, she contributes to existing literature on judicialisation and neoconstitutionalism by examining the expanded role of courts ‘not only in terms of their function as mechanisms of dispute resolution that issue a final solution, but more as coordination devices that can facilitate change by creating spaces for the interaction of multiple actors’ (p. 169).
The book begins by providing conceptual tools for assessing the coalition-building power of tribunals in the period after structural rulings are made. Botero introduces a ‘topographical approach’ (p. 16) for observing the main dependent variable – judicial impacts – over time, distinguishing between two interconnected phases: immediate and long-term outcomes. She conceptualises a ruling’s immediate impact as composed of four subdimensions: ideational shifts in discourse (captured in media reports and interviews), formal jurisprudence (in court documents and rulings), organisational strategies and networks (as mapped by stakeholders in interviews), and material resources and information (reflected in financial allocations). Longer-term judicial outcomes are observed in the degree to which a given right in question (e.g., access to a clean environment) is met in the period after the structural ruling is made, often many years later. By accommodating temporal effects and multiple dimensions of rights enforcement, this conceptualisation provides an alternative to the language of ‘direct and indirect’ impacts and allows the author to trace a wider range of activities beyond simply compliance, policy reforms, or regulatory changes.
To explain judicial impacts, Botero introduces two primary independent variables – court-backed monitoring committees and civil society legal constituencies – whose synergy produces collaborative oversight arenas that ‘bring together different issue-specific social organizations while also opening up spaces for the interaction of these organizations with state agents that usually function in the context of a fragmented state’ (p. 31). Formal court-promoted monitoring committees place political pressure on the targets in a ruling while alleviating information and power asymmetries, and dense civil society constituencies generate legal and social mobilisation to draw attention to a ruling’s implementation while producing diffusion of rights-based discourse among stakeholders and society more broadly. Depending on the extent to which these factors are present, stronger or weaker collaborative oversight arenas emerge, generating information feedback loops, access points for social accountability and sanctions, and ideational shifts among stakeholders that ultimately pressure governments to enforce rulings.
This theoretical argument is artfully applied in the book’s four empirical chapters, which employ paired comparisons of eight structural rulings in Argentina and Colombia – two with both independent variables present, four with one or the other present, and two with neither evidently present – as well as two shadow cases from India that reveal the trade-offs of collaborative oversight arenas, namely autonomous monitoring without accountability and participation fatigue. In each empirical chapter, Botero provides useful summary tables that describe and provide an ordinal score of the immediate and long-term judicial impacts of each structural ruling, and convincing descriptive statistics of indicators such as media reports and legal trials produced by collaborative oversight mechanisms.
In the concluding section, Botero identifies refinements to her theory that also serve as areas of future research. These include more exploration of the types of external actors that are delegated monitoring roles by courts and further examining the configuration of civil society constituencies in more detail.
Much to her credit, Botero identifies and engages forthrightly with core debates occurring around judicialisation processes in the Global South, such as the tension between critics who warn of courts becoming vehicles for elite activism and optimists who observe judicial power as an important remedy for asymmetrical relations of power in consolidating democracies. Unfortunately, these debates are largely relegated to the book’s introductory and concluding chapters. The empirical chapters are constrained to tracing judicial impacts within the framework of the four subdimensions of immediate impacts and long-term effects, with little critical examination of the tension between domestic critics of and cheerleaders for judicialisation. Relatedly, apart from an alternative explanation in Chapter 3 for changes produced by Causa Mendoza (a 2008 structural ruling on environmental rights in Argentina), the author generally avoids the topic of strategic political behaviour by parties, legislators or lobbyists within oversight arenas. As a result, the boundaries and ‘rules’ of these arenas are somewhat vague, as are their relation to formal oversight mechanisms such as standing legislative committees. It is worth asking whether collaborative oversight arenas will eventually become (if they haven’t already) permanent features of democratic politics in these countries, or if we could expect a gradual transfer of oversight responsibilities to government institutions as the activities become more routine and better understood. As the author notes, and as illustrated in the case studies from India, participation fatigue poses a serious obstacle for the efficacy of collaborative oversight in fragmented states; the institutionalisation of collaborative oversight activities would provide alleviation and other benefits such as transparency and consistent resources.
The book’s small-N paired comparison approach provides a layer of consistency that facilitates understanding of a very complex set of topics and time-frames. However, as the author notes, this cross-country research design is not without drawbacks, particularly for case selection and inference. The author justifies the selection of countries as typical or early pioneers of collaborative oversight but she is less transparent about the selection of structural rulings, despite providing a useful schematic for understanding cases’ scope of complexity. Moreover, access to the universe of structural socioeconomic rulings and their constituencies in each country is lacking, making it difficult to rule out the existence of alternative causal mechanisms in the judicial sphere leading to rulings’ impacts. More longitudinal within-country analysis of structural rulings across issue areas over time would allow the author to control for unobserved heterogeneity on judicial impacts produced by domestic factors such as political parties, electoral rules, or economic crises.
Finally, it would have been insightful to read excerpts or textual analysis of some of the rulings themselves to evaluate and compare collaborative oversight jurisprudence, but the scope of analysis employed by Botero, ranging across multiple countries, issue areas and extended time periods – while truly impressive – precluded this possibility. Nevertheless, Botero’s study provides invaluable scholarly insights into the coalitional politics of rights enforcement, providing a pioneering contribution to relevant debates around judicialisation and the role of courts in democratic consolidation. She makes a convincing argument that high courts’ use of collaborative oversight arenas allows them to play a democratic reinforcement role, reducing friction between formal branches of governments in pursuit of more representative, rights-based orders.
