How do Supreme Courts shed their skin?: Changing roles in social rights adjudication: Argentina, 1994-2021

Abstract

Based on Katharine Young’s typologies of judicial review approaches and court role in social rights adjudication, this article analyzes the Argentine Supreme Court's treatment of social rights since the 1994 constitutional reform, which constitutionalized international human rights treaties and expanded judicial review. This article distinguishes three periods in which the Supreme Court went through membership changes, modified its role, and provided legal justifications for each shift. From 1994 to 2000, the Court played a detached role, deferring to elected branches and crafting restrictive interpretations of social rights and international sources, while its public esteem declined. A partially renewed Court sought, from 2000 to 2012, to regain legitimacy by shifting towards a supremacist role, broadening review powers, making extensive readings of social rights, and relying on international law, while tensions with the government increased and the Court risked overburdening itself with complex social issues. Since 2012, the Court has returned to a detached role by narrowing the scope of judicial review, adopting restrictive interpretations of social rights clauses, and selectively using international law while leaving precedents intact by distinguishing new cases in order to protect its technical legitimacy. In the future, the Court will likely face difficulties finding distinguishing features in upcoming cases or further departing from international law. Its current detached role risks undermining legitimacy if no new legal justification emerges. The Court will be forced to overturn precedents from the supremacist era, which would damage its technical legitimacy.