Johnson, Gbemende --- "Degrees of separation: judicial-executive relations in the US and Latin America" [2019] ELECD 2321; in Sterett, M. Susan; Walker, D. Lee (eds), "Research Handbook on Law and Courts" (Edward Elgar Publishing, 2019) 30

Book Title: Research Handbook on Law and Courts

Editor(s): Sterett, M. Susan; Walker, D. Lee

Publisher: Edward Elgar Publishing

Section: Chapter 2

Section Title: Degrees of separation: judicial–executive relations in the US and Latin America

Author(s): Johnson, Gbemende

Number of pages: 16

Abstract/Description:

Executive and judicial power share a unique historical and political linkage, particularly in the US and across Latin America. When emerging from their colonial pasts, US constitutional framers attempted to structurally prevent the emergence of a dominant national executive; however, across a number of Latin American countries, dominant executive rule became a hallmark of postcolonial governance. This chapter explores issues and controversies that have emerged regarding the juxtaposition of judicial and executive power in separation of powers systems. How do judges navigate the complex boundaries delineating responsiveness to executive preferences versus deference to coercive expressions of executive power toward the judiciary? While significant variation exists in political environments across the US and Latin America, and across Latin American countries, conflicts repeatedly emerge over the staffing of the national and federal judiciary. Similarly, judges in separation of powers systems must strategically weigh the risks to judicial autonomy and institutional independence when ruling against the executive and executive preferred policies. Even in environments where tenure stability is high and the ability to attack the judiciary is restrained, judges will exhibit increased deference to executives with higher levels of political capital.