Court-Executive Relations under the Pandemic

Court-executive relations have been conflictive in many Latin American countries in the last decades. The independence of highest courts is frequently contested through formal and informal political interferences when courts take decisions contrary to government interests. During the pandemic, executives have been implementing protection measures against the spread of the virus that curtailed individual rights or that resulted in conflicts of competences between different levels of government. For example, court-executive relations in Brazil and El Salvador, where populist presidents Bolsonaro and Bukele reacted with public attacks to rulings from the highest courts, drew a lot of attention. In Brazil, the Supremo Tribunal Federal (STF) maintained its power to control a hostile executive unwilling to implement the necessary measures to fight the pandemic. On the contrary, in El Salvador, the conflict between the executive and the Constitutional Chamber of the Supreme Court increased during the pandemic and, lastly, ended with the destitution of four judges. This paper starts with an overview of the court-executive relations among the region in the last decade. Then, it undertakes the first regional mapping of these relations during the pandemic, on pandemic-related court decisions and the respective government reactions. We discuss exemplary cases of court interventions in three areas: the protection of individual rights, the control of executive decrees on emergency measures and the arbitration of conflicts between different levels of government. Two case studies on Brazil and El Salvador explore in more detail whether and how court-executive relations evolved under these exceptional circumstances, and which have been the effects on the democratic regimes.