Court-Executive Relations during the COVID-19 Pandemic: Business as Usual or Democratic Backsliding?

Abstract

This chapter assesses whether governments' legal strategies to address the COVID-19 crisis were checked by courts or alternatively court-executive interactions resulted in diminishing court stature and declining democratic standards during the first two years of the pandemic. The analysis focuses on Latin America, where courts are formally empowered to control governmental measures and to defend individual rights, even though court power varies considerably in practice. The chapter works with the cases of Argentina, Brazil, Ecuador and El Salvador, where the higher courts were ready to boldly exercise control over executives' decisions vis-à-vis the pandemic. It adopts an inductive approach that, first, aims at discovering how executives reacted when facing controls and, second, which executives were prone to exploiting these critical circumstances to tilt the balance of power in their favour. It identifies four different constellations of court-executive relations in the short period of the past two years, with varying outcomes seen. Remarkably, only in one case (El Salvador) the functioning of democratic institutions was undermined.