Public opinion as a foundation of de facto judicial independence?: lessons from Argentina and Uruguay

It is anecdotally clear from experiences in various countries that the perception that judicial independence is under threat can mobilise significant public opposition. The extent to which the public may oppose measures that impinge on judicial autonomy has clear implications for de facto judicial independence. Political science scholarship, especially in the US, has suggested that the public’s opinion of the courts may be amongst the most significant environmental factors in safeguarding that independence. There is relatively little examination in the literature outside the US; however, of how, why or in what circumstances such widespread and public opposition will – or, perhaps critically, will not – come to be. This article aims to address that gap using evidence collected from focus groups in Argentina and Uruguay. Despite their social and cultural similarities, the evidence points to stark differences in the degree of de facto judicial independence in each country. Moreover, Argentina appears to provide an important counter-example to any assumption of public opposition to court-curbing measures. The courts there have experienced repeated political interventions without any obvious public opposition. Drawing on the data collected, we argue that the stability of a historical status quo, the presence of formal processes that emphasise expertise and impartiality, and a perceived willingness to make decisions that run counter to the preferences of the political elite appear to be important contextual determinants of public perceptions of de facto judicial independence. The data also suggest, however, the contingent and potentially fragile character of that positive public opinion, especially if faced with public discourse or criticism of the courts as a politically motivated institution.