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Judicial Activism without Activist Judges: The Curious Case of Colombia’s Supreme Court (2006-2010)

Latin America
Courts
Judicialisation

Abstract

This Paper questions some of the dominant models of judicial activism in light of the increasingly activist role played by the Colombian Supreme Court between 2006 and 2010. The Court indicted and jailed a large number of elected politicians, including the allies of a highly popular president, in the context of the parapolitics scandal. Given that the country’s judiciary did not undergo significant change during those years, and considering that a host of strategic and ideational theories are found wanting, this paper argues for an “endogenous theory” of judicial activism. In other words, an ongoing conflict between politicians and judicial institutions may introduce its own dynamics, which may result in heightened judicial activism in the absence of structural, contextual or individual-level change. This Paper relies on interviews with over 40 individuals (judges, lawyers, academics) in Colombia between 2014 and 2016. The interviews are complemented with systematic review of newspapers and other secondary sources. It reveals that the Court’s activist attitude was neither a necessary nor sufficient condition of the strategic environment it found itself in, the worldviews of the judges, or the legal norms they were supposed to follow. Key decisions made by politicians and Supreme Court justice at critical junctures generated endogenous dynamics that heightened the conflict between the Court and elected branches, and resulted in the sort of judicial assertiveness that was unprecedented in Colombia and elsewhere. The paper concludes by highlighting the relevance of the Colombian case for comparative studies of judicial activism.