Gatekeepers of the Realm: Latin American domestic judges’ counter-resilience and power of agency towards the Inter-American Court

Can domestic courts remain the main actors responsible for change in policymaking and still relate with International Institutions? Courts have been considered “gatekeepers” of policymaking since the 80’ by judicial politics scholarship; but now courts have become the gatekeepers of realm by filtering the influence of international courts within the domestic realm, according to their own instrumental reasons and necessities. Although IR/IL literature has extensively written about resistance (Hunneus 2011), backlash (Madsen, Cebulak, and Wiebusch 2018, Alter and Zürn 2020), and resilience (Gonzalez-Ocantos and Sandholtz 2022) with International Courts, the flipside of this relationship between courts has been understudied. This article aims to investigate how domestic courts relate to international courts. The research question is significant because understanding why domestic judges resist international jurisprudence is crucial for improving human rights protection and policies. While scholars have explored the compliance of international institutions and their impact on the ground, few studies have examined the reaction of domestic judges in using (or not) international jurisprudence. This article fills this gap by exploring how domestic judges act as gatekeepers, allowing or disallowing international jurisprudence to permeate domestic decisions. It explores this gatekeeping capacity by contraposing positive cases with negatives ones. Whereas the Supreme Court of Argentina decided to use the IACtHR´s jurisprudence to overturn its amnesty laws in 2004, even without any case against the country before this international court, Brazil is still reluctant both to comply and to cite the IACtHR´s jurisprudence. Using mix-methods, such as interviews with clerks and judges, this article unfolds the endogenous processes happening in these courts in the past decades. Mirroring the role of international judges, domestic judges act as gatekeepers of the realm either opening or closing the door to international jurisprudence. As domestic judges opinionate and adjudicate, they become perpetrators of a social action, “in the sense that the individual could, at any phase in a given sequence of conduct, have acted differently” (Giddens 1984). Translating this notion of “agency” and “filtering knowledge” into domestic judges’, judges would be face with actions that are expressly or inexpressively in agreement with international jurisprudence, or expressly or inexpressively in disagreement with it. This article builds on Campbell notion of “power of agency” to explain how gatekeeping happens in practice (Campbell 2009), changing policies from action derived from within the domestic courts, in conjunction to their structural bias (Silva 2022). By theorizing gatekeeping as a form of judicial behavior, this article explains outcomes while accounting for domestic and international politics and proposes an innovative analytical mechanism applicable across levels of analysis. The article uses citation/content analysis and qualitative interviews with clerks and judges to examine endogenous processes towards international jurisprudence in Argentina and Brazil. Through these methods, it proposes gatekeeping as a form of judicial behavior embedded with power of agency, which produces spillover effects beyond national boundaries, contributing to regime complexity and judicial politics. This article contributes to different fields by proposing an innovative analytical mechanism applicable across levels of analysis, explaining judicial behavior though these levels.