By: Otto Fernandez
“Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.” — John Roberts, U.S. Supreme Court Chief Justice Confirmation Hearing.
The United States Constitution secures our country’s democratic ideals through a system of checks and balances between the executive, legislative, and judicial branches, providing a constitutional safeguard against the centralization of authority. For this system to function effectively, judicial independence is critical. In the United States, we ensure judicial independence by nominating and appointing federal judges to the bench. Excluding judges from the political process allows them to remain neutral and independent, thereby empowering judges to check and balance the legislative and the executive branches. Until recently, the Mexican Government and Constitution were guided by these same democratic structures and principles. This all changed on September 15, 2024, when Mexico’s former President, Andrés Manuel López Obrador, signed a bill into law amending the Mexican Constitution, which overhauled the judicial system in Mexico.
This bill, coined the Judicial Reform, will now require that all local and federal judges— including the ministers on the Supreme Court—be elected to the bench by a popular vote. President López Obrador and his successor, President Claudia Sheinbaum, have supported this bill arguing that this reform is the only way to secure judicial independence and address the corruption within the Mexican courts. Under this reform, the legislative, executive, and judicial branches will each nominate ten candidates for election onto the Supreme Court, and three candidates for every other judicial position. In June of 2025, all eleven Supreme Court Justices will face an election to fill nine remaining seats on the bench. By the end of 2025, more than half of all federal judicial positions will come up for election. All remaining judges will face an election by the end of 2027. Approximately 1,600 federal judges will come up for reelection in the coming years. Although most of the scholarly and political debate has been centered on the politicization of the judiciary, this reform enacts several other structural changes that cannot be ignored. Additionally, the bill establishes the Court of Judicial Discipline, which will consist of five elected judicial members vested with broad authority to supervise and sanction sitting judges. Furthermore, the bill severely diminishes the court’s ability to provide injunctive relief.
One point that both supporters and detractors of this bill can agree on is that Mexico has a corruption problem. According to the 2023 Corruption Perception Index score, Mexico is perceived as the thirty-first most corrupt country in the world. Additionally, according to the Global Impunity Index, Mexico has the highest impunity rate in the Americas and fourth highest globally. While both sides of the argument agree that this rampant corruption must be addressed, there is disagreement on how to do it. President López Obrador claims that judicial elections are the solution. He has framed this bill as a shift of power from the few influential, wealthy elites in Mexico back into the hands of the Mexican people. He argues that sitting judicial officials have been bought by the wealthy to levy judgments in their favor. Further, he argues that electing judges will better represent the will of the people.
However, there are many that are skeptical of President López Obrador’s stated goals. Those opposing the reform argue that the source of corruption and impunity in Mexico lies closer with the state’s inability to prosecute criminals, considering 90% of crimes in Mexico are never brought to court. Additionally, they argue that Bolivia provides a frightening case study for what lies ahead for Mexico. In 2009, Bolivia became the first country to elect judicial officials in their highest court. Since enacting this change, Bolivia has become significantly more corrupt according to the Corruption Perceptions Index. Ultimately, President López Obrador’s detractors argue that the true purpose of this reform is to eliminate the structure of checks and balances in Mexico and vest unprecedented power to the executive and legislative branches. Consider this, in 2014, then presidential-candidate López Obrador, created a new political party called Movimiento de Regeneración Nacional (“MORENA”). During López Obrador’s presidency, MORENA secured a supermajority in the lower house of Congress, and fell just short of a supermajority in the Senate. Having aligned both the executive and legislative branches, the only thing stopping López Obrador and the MORENA party was the courts. After the Judicial Reform, it is inevitable that all three branches of government in Mexico will align fully with MORENA, and nothing will be left but unbounded governmental power.
Although the effects of this judicial reform are yet to be realized, I believe that democracy in Mexico is in serious jeopardy. Judges must have one of, if not, the most difficult jobs in society. They must be masters of the law. It is not sufficient for judges to be experts in any single niche of the law. No. Judges must preside over cases concerning a broad and diverse array of legal issues and questions. All the while, judges must also concern themselves with the ramifications of their decisions onto society. As such, it is unwise to subject federal judges, particularly Supreme Court Justices, to the political process. Judges should apply the rule of law fairly and accurately, without considering whether their ruling makes them more or less likely to be reelected. Under this regime, judges in Mexico will face undue pressure to decide cases aligning with MORENA’s interests. As constructed, the judicial system is ripe for corruption. Inevitably, there will be a rogue judge who decides to rule against the majority party. In such a case, the Court of Judicial Discipline is armed with broad discretion to fine, suspend, dismiss, and even file criminal charges against this judge.
Further bolstering the governments dominant position, the court’s injunction power has been stripped almost entirely. To illustrate the potential danger this amendment poses for human rights, I present the following hypothetical example. Under this constitutional reform, if the President of Mexico were to sign a bill into law stating that all individuals were mandated to relinquish all their assets to the state, the court would have no ability to suspend the challenged law for anybody but the direct Plaintiff, until the completion of the case. It is not difficult to imagine the potential harm that could be inflicted on the Mexican people now that judges can no longer enact blanket injunctions for unconstitutional laws.
Although the political system in Mexico is far from perfect, politicizing the judicial system is imprudent, and frankly, dangerous. Unfortunately, corruption has pervaded the Mexican government for much of its existence. Nevertheless, the actions taken by President López Obrador will not only fall short of alleviating corruption in Mexico, but will exacerbate it.
