Ricardo Lorenzetti, a justice of the Supreme Court, which he headed from 2007 to 2015, runs through both his judicial and political experiences, also reflecting on issues which concern him beyond the tribunal’s rulings: ecology, electioneering narratives, health, the economy, our society and the new global debates, including problems complicating Argentine society such as the foreign debt, poverty and institutional failings.
I’ve heard you referring to the failure of governability and the exhaustion of political discourse. What is going on in the world of ideas, both legal and political, across the globe at the moment?
It would be interesting to start with what society perceives, something intellectuals and political leaders often manage not to do. If you look around the world, most people today feel sadness and fear. That is reflected by art in the first place. If we look, for example, at the cinema of South Korea, which is a model of economic development with big and rich companies, it shows films like Parasite, where you see frustration and despair or Squid Game, widely seen in Argentina, where people bet money to exit a desperate situation. In other words, we are in the presence of a frustrated and fearful society without hope so there is a failure of governability. That is very dangerous and we have to change it, above all to restore the right to hope, on which we have to work.
So what are the causes? There are some very important changes in the status of institutions and power which we need to keep clear if we are to change them. Because most of what we know was designed 200 years ago with ideas dating back 300 and things have changed very, very much since then.
So the first thing is – we have electoral regimes with the government, the president and legislative representatives elected in elections. And what happens today? That was thought out many years ago with the idea that there was time to make decisions which would be carried out via the elected representatives but technology has changed since then. So today the person making decisions is questioned immediately and in order to win elections, they have to promise benefits. Nobody wins elections promising costs. So this phenomenon causes almost all the electorally based governments to have increasingly a structure of incentives with the focus on immediate solutions.
The main and deep-seated problems, which are too complex, cannot be solved this way without imposing costs – they are not solved but transferred. If you look at the Argentina of 10 to 20 years ago, we had the same problems as now – i.e. inflation, crime, the problems of the pensioners and the functioning of the Judiciary, drugs… It is very difficult to function because the problems cannot be solved so what happens? There is a distortion because the judicial branch is what the United Nations call an unorthodox power because it is not submitted to an electoral régime. The Judiciary is thus saturated with decisions appropriate to other powers – for example, in the United States we are seeing a great crisis because of the Supreme Court decision regarding abortion.
Normally that is discussed in other spheres, as happened in Argentina. We had to make some very tough decisions concerning inappropriate issues so the first problem is a structure of institutional design which must be changed. That is why we are proposing agencies to take the major issues away from electoral logic. That’s the first problem. The second problem – we have passed from being a democracy of projects to being a vetocracy, as explained very well by Pierre Rosanvallon and many others, because beforehand all the youth of my generation [and his] sought to reach power to change the world with a project, which could be egalitarian, socialist or an evolved capitalism, just as in the United States where the idea beyond left or right was to take power to change the world, making it a better place, a utopia.
Today nobody gets enthused over that. Kids today are not enthused because they do not believe that a better future exists and nor does it really because if we follow that path, we are moving towards a true utopia when there is no such place. The current direction of the economic, social and political systems is taking us towards a collapse, not any future. Over that scientific opinion is pretty much agreed.
Does that have to do with the crisis of the state?
Yes, the state but I’m talking about the institutions – I don’t want to talk about presidents, governments or parties. The problem is institutional design, which is something that we are going to have to start discussing in our country because we have had many years of failure. We shouldn’t be asking ourselves about the successes but the failures.
There’s that book by Daron Acemoglu, Why Nations Fail, isn’t there? We have an institutional design which does not work, for example, this idea of vetocracy. There are no longer any projects, then, current politics is not a politics which generates processes, ideas or movements, it is a politics which disputes spaces of power. So if it does not generate processes, that leads to inertia and that inertia is vetocracy.
Today what we see is that nothing can be resolved, there is far more capacity for veto than for action. Anybody today knows what needs to be done but nobody has the power to do it because they are questioned at once and then blocked.
Would that be linked to the new economy, Ricardo?
That’s exactly what I see in that book and I think that there is a great international movement in that, in this path leading nowhere. We keep repeating the same discourse of the ideas of progressive development, that we are going somewhere when what we are hearing in the current public discourse is more like fights and arguments. It’s like that phrase in the book Las palabras y las cosas which I like so much which says: “It’s Don Quixote struggling against the world to impose his texts.” In other words, we are listening to a worn and ancient discourse on things like polarisation and development to impose on us a reality which no longer exists.
What is the world doing today? Changing direction. Only by changing direction can we survive so what is happening today? For example, the crisis of the pandemic has demonstrated very clearly that the costs of continuing like this exceed the benefits, that’s very clear. If we have crises of this type every year, as is predictable, we will not be able to shut ourselves in, halt the economy and invest the money. Because all the countries are exhausted with deficits. Nobody wants to live in confinement, even in a crisis, so there was a huge international reaction and I think that came along with important trends as in, to make an analogy, a postwar period.
Now the institutions are being redesigned. What hurts me is that nobody in Argentina sees that. But why am I saying that there is a redesign? For example, [Joe] Biden called a meeting last year with many world leaders, none of whom opposed a change in sources of energy. There is an important transition in that change so we are seeing that there is going to be a change of direction sooner or later.
If energy changes, the cars will change and we are already seeing electric cars, and if we see electric cars, we are also going to see a change in fuel for aircraft and if we see all that, urbanism and the design of cities is also going to change. Cities are organised around the car and there will be more public transport to save energy. There will be very big changes in food – today we are seeing very important movements such as vegetarianism and health food, very big consumer changes. There is a strong trend today for people with the purchasing-power to buy health food and the economy is changing in terms of energy, consumption, production and post-consumption. There is an economy of post-consumption – for example, we are seeing here the cartoneros recycling garbage, who in reality are a vanguard economy because I see in the world a huge investment in recycling rubbish and earning a lot of money thereby.
So we are witnessing extraordinary changes. And what is happening in Argentina? If we seek to manufacture the same car as Ford, we’d never make it in that competition but the pandemic produced something important here by accident, as occurs in Formula 1 races – when there is an accident, a safety car enters, bringing the first and last cars closer together. This pandemic produced that – the best car with renewable energy has yet to be invented so we have our own opportunities to invent if we are smart in this new economy which is emerging. We have the capacity to do that, renewable cars with renewable energy and food…
Argentina has that capacity if we re-orient ourselves in time – if we don’t, we’re going to enter into ever greater anguish. For example, at the recent Ottawa conference, there was a first buyers agreement headed by the United States obliging the major companies, who are the main buyers, to buy sustainable products. So, for example, Maersk, the world’s biggest container company whose name is seen all over the port of Buenos Aires, will be transporting sustainable products. If we do not do that, we will not be able to export. The European Union has signed a “green pact” prohibiting products coming from zones of deforestation. So if we do not make those corresponding changes, we will remain increasingly outside the system. Such is the new economy – a change of direction towards an economy within the concept of sustainable development.
That’s what your latest book El nuevo enemigo: el colapso ambiental (“The new enemy: environmental collapse”) is all about.
Yes, a book for the general public because I’m worried about the country, the subject matter is not judicial. This kind of thing is always within my intellectual concerns and I wrote it to start a debate and, more than anything, to generate a movement.
The Senate has renewed debate over a bill to expand the number of Supreme Court justices to 25. Does that have any judicial basis or is it simply to have political support?
Yes, as a law it obviously has a judicial basis. The issue is whether one is in favour or against but above all, it is very confusing, isn’t it?
Firstly, the Argentina model is similar to the United States because our Constitution was taken from there so it is very different to Brazil, Chile or Europe where the constitutional courts are elected for a determined period. For example, now in Spain, where I was a fortnight ago, there is a great crisis due to the political divisions so that the terms of the Constitutional Court cannot be served out. Then they have the Cassation Court, their biggest, to unify jurisprudence. We do not have that system so that there can be no quantitative comparison – we have the system of the United States, which means that every province has judges of first instance, an appeals court and a supreme court which is autonomous.
Around 80 percent of the litigation passes through the provincial courts, followed by the federal courts with a first instance and judges of the Federal Appeals Court. Then we have two Cassation Courts to unify criminal jurisprudence and only then a Supreme Court to pick certain cases to rule whether they are constitutional or not. The Supreme Court receives many requests in the Argentine model, just like the United States, which receives 15,000 to20,000 petitions, depending on the period, of which the 100 most relevant are selected. The Court then considers whether it is an important or highly divisive issue, whether a criterion needs to be established and whether the Constitution is at stake.
We do the same things because we have the same system. To the 25,000 petitions received annually, we apply what is called the writ of certiorari, selecting cases where the Supreme Court fixes and grounds criteria. That’s our system. Firstly, courts in every province and secondly, a Supreme Court with justices from the provinces, which is, well, what we have. Because Néstor Kirchner’s Decree 222 says that there must be gender and regional diversity. I come from Santa Fe, as does [Chief Justice Horacio] Rosatti.
While [Juan Carlos] Maqueda comes from Córdoba.
Carlos Rosenkrantz is from Corrientes while the only justice from the Buenos Aires area was Elena Highton [de Nolasco] from Lomas de Zamora. The most important thing is stability and the message we give Argentines. Because I think a lot about our country and what we are leaving after us to our youth. Nobody of my age ever had a quiet decade in the last 50 or 60 years, no decade without some abrupt change. We are not modest with our changes, changing the economy, the tax system, the judicial branch. I think that we pay a very high price for this context of permanent uncertainty because there is no confidence – Argentina’s biggest crisis is confidence.
In 2006 when I had recently entered the Supreme Court with [Enrique] Petracchi as chief justice we were discussing this issue [of size]. We went together to the Senate because the problem was that we had two vacancies and we had to resolve the issue of the corralito deposit freeze – a very big economic problem – and there was no majority. At that time one law was proposed and the majority of those who voted for that law now want another. I think that a person can change their ideas but in all honesty – we try to provide stability, seriousness and institutional maturity. Even if we don’t like it, we’d try to put together the Court and discuss the arguments but passing from a Supreme Court of four to 25 justices is something which would seem to generate much instability.
You said that there should be no judicial populism. How would you define judicial populism?
There is often talk about the image of the Judicial Branch, which is a concept we need to work on a bit, what does it mean? That judges should rule to have a good image? If they do that, we are in a populist position to stay on the right side of the majorities. Is that what is happening? No, it isn’t.
For that to happen, wouldn’t the judges have to be elected by popular vote?
No, there are no judges elected by the popular vote. That’s something very marginal, in very few countries. But I would say this – judges have to seek prestige, not popularity, and that comes from a line of conduct and a set of stable principles maintained over a length of time, whatever those principles might be, because the judge is impartial, no matter what the pressures, and must be sober to withstand those pressures, which are logical enough, always deciding according to the same line of principles – that’s prestige. Because if not, with the great evolution of the media and, above all, the social networks, there could be a dangerous trend to decide according to those networks.
You said that “nobody in Argentina wants an independent judiciary.” Now that you are coming up to two decades in the Supreme Court, do you perceive an evolution or involution in the value set on independent courts?
I think that is one of the issues which are always transferred and never resolved. I think that there must be a serious discussion about the independence of the judiciary at both federal and provincial level. Because I would like to speak clearly here – when the Argentine people see the Council of Magistrates being discussed, what is being discussed is one political sector wanting to place one set of judges and another sector wanting to place others, whether a judge rules on one side of the line or the other.
What is needed is independence – the Judicial Branch cannot be a political battlefield. Within the big political picture, yes, but not party politics or placing crony judges. That’s one issue, a second requires the Judicial Branch to be autonomous, which also means in budget terms. That is the case in Brazil and Chile, to give two neighbouring examples, as it also is in the United States. Argentina never had that and nobody ever asked for it. We’ve been asking for it for the last 20 years but nobody from any party. We are talking about a cultural issue, regulatory autonomy.
In Brazil the Supreme Court placed a justice where the conflicts were, in the airport. That can be done but not here because the Supreme Court has no such faculties. The Judicial Branch in Argentina is organised in such a way that it is paralysed – Túpac Amaru’s idea of division into muúltiple parts. The Council [of Magistrates] has one part with the administration and the selection and impeachment of judges, the Supreme Court has another part and then there are the provincial courts. It’s very difficult…
Done on purpose in order to be slow and dysfunctional.
That is the experience. I’d like us to debate seriously because the institutional viability of Argentina is what we are discussing. I think we’ve reached a point where we need to discuss very seriously whether we can have an institutional system autonomous from daily disputes. We are all like the Italians, I have many friends in Italy, I was there very recently working on a bill with a member of the Cassation Court. We laughed over how similar the political battles and arguments are but there the economy and the judicial system function because they have a certain degree of autonomy and that conveys a certain stability. We don’t have that. If you stop and look, every movement in the Executive Branch influences everything.
What do make of the two-headed government in the Supreme Court? Does having a president and vice-president dissenting with each other generate some perspective of institutional peril?
No, we cannot give an opinion, those are political differences. Argentine history is plagued with such examples and I believe that the function of the Supreme Court is to set limits on the other branches of government and protect the citizenry. We have to be above all these questions, which may have their political logic, or above polarisation, which I don’t like – I find it an exhausted discourse. We rule in accordance with the Constitution, not the daily spats, because that would not be serious.
You were the Supreme Court chief justice for nine years, how did that experience change your perception of power?
I think that there is a very mistaken idea of power. It’s generally associated with the possibility of imposing one line of conduct on other people – what is called “hard power,” which is the use of coercion and payment. My experience is that there is a huge power struggle to achieve that, to see who has the power of money and who has the power of coercion, and that leads to failure.
I believe in soft power as described so well by Joseph Nye. And that’s what works nowadays because today’s society functions on the basis of collective emotions which trigger hope. Nobody today can be coerced so when I explain the concept of power to my students, I think that today it is the power to trigger hope.
What is your opinion of the statements of Justice Minister Martín Soria regarding the Supreme Court?
Again those are just opinions. We must not let ourselves be carried away by those opinions. When I first entered the Court, I talked a lot to [the late justice Carlos] Fayt and he always told me: “Facts are sacred, all the rest comes and goes.” So the facts are the concrete things, aren’t they? The minister spoke and gave his opinion but…
The Supreme Court has rejected Cristina Fernández de Kirchner’s appeals against her trial for public works graft. I’m not asking for your opinion on that case but on the so-called “lawfare' and how much it may have existed, or not, in Argentina.
The Supreme Court normally has very little to do in criminal matters because there are two Cassation Courts which set jurisprudence and enter into the heart of the question. The Supreme Court normally intervenes only if constitutional issues arise, not crimes – for example, in the sphere of drugs, the Court did find that there was a constitutional problem regarding drug consumption in the Arriola case. If not, it is normally the lack of a final sentence, which is what was done in this case. We must understand that the Supreme Court cannot change its rules, which date back a great many years and this is what was decided.
Over the lawfare issue, those are opinions. Some people are convinced that lawfare is a reality, others not. What we have to do is deliver verdicts on the basis of the evidence and, above all, explain it to the population. When the defendant does not like the verdict, there can be one appeal after another before reaching the Supreme Court with 20 or 30 judges intervening. It is difficult for so many judges to rule in concert, that gives many guarantees.
Some verdicts may be arbitrary and mistakes can be made beyond any doubt but the system is designed to correct that.