Fifteen Questions: Alfredo Gutierrez Ortiz Mena on Constitutional Backsliding, Counter-Majoritarian Courts, and Tenoch

Alfredo Gutierrez Ortiz Mena is a former justice of the Mexican Supreme Court and the Harry J. Steiner Lecturer in Human Rights at Harvard Law School. This interview has been edited for length and clarity.

FM: What inspired you to enter law?

AGOM: I come from a long line of lawyers, so I would have to say lack of imagination on my part. No, I’ve always been interested in the law. I was always interested in public policy, and there was a lot of that in my house and a lot of lawyering in my house. So it was something I was always familiar with, and it just seemed very natural.

FM: Recently, you resigned from your Supreme Court position in response to the reforms that have forced judges to be elected in Mexico. Looking back at your tenure in the court, are there any particular decisions that you think were possible before, but under this new electoral system would be much more difficult to have?

AGOM: I think the jury is still out on this court. I wouldn’t want to presume to think how they are going to rule on issues. Certainly, there were issues that at the time, were very unpopular and would not win an election. For example, same-sex marriage, which I was able to vote on and draft the opinion. Mexico is a traditionally very Catholic country, and that issue would — I don’t think it would win any popular vote. The other issue is women’s reproductive rights, abortion. I was heavily involved in the opinions that led to the decriminalization of abortion. Again, not popular in a very traditional culture like the Mexican culture, and those are counter-majoritarian decisions that, let’s just say, won’t be popular in the ballot box.

FM: Do you think any of those decisions — having already been decided — are at risk of being overturned in this new court, or do you think the President [Claudia Sheinbaum] will hold fairly strongly?

AGOM: Again, it’s very difficult to know, because nobody’s ever done what has happened in Mexico. Nobody’s ever removed all the high courts. Nobody’s ever removed all the circuit court and all the district courts in one fell swoop. So will precedent hold? Will it not hold? Nobody knows. Nobody knows.

FM: Can you share your thought process, a little bit, in resigning from your position instead of standing for election?

AGOM: Well, I truly believe in a counter-majoritarian position of a court. I believe in a constitutional democracy, and I felt that the design — and it wasn’t just the fact that the judges were being elected — it was the fact that you were removing a lot of human capital that the country had invested in heavily, in training and preparing. And I felt that a court that doesn’t have a counter-majoritarian position or defend rights, minority rights, is going to be a court that’s there to legitimize government, and that’s something I felt that was incompatible with my personal beliefs of what the court should be.

FM: What do you think are the most significant differences serving on a Supreme Court in nations with much newer and evolving constitutions, such as Mexico, compared to a country like the U.S.?

AGOM: The U.S., in a lot of ways, is a reference for the rest of the world, because nobody has a constitutional tradition the United States has. And everybody looks to the Supreme Court decisions, Supreme Court case law. Everybody reads them and everybody learns from them. So Mexico really started to have a serious constitutional court in 1994, an important judicial reform. So everything was new, and that has its disadvantages and its advantages. The fact that everything is new is that you can start with the latest decisions, and you’re not bound by precedent, as you would be. The bad thing is precisely that you don’t have a thick doctrine of constitutional law, and that in itself, is very risky. But I would say that those are the differences.

FM: What do you think is the least understood aspect of a justice’s job?

AGOM: It’s lonely. You’re there in your chambers, you’re taking a decision, you know that decision is going to touch lives, and you have nobody to talk to. It’s very lonely work, and if you do it correctly, as years go by, it gets lonelier and lonelier and lonelier.

FM: Do you see any signs of other courts in Latin America going towards an electoral system, or does that feel like it’s fairly isolated in Mexico?

AGOM: Well, first of all, I hope not. I don’t agree with the system. I know Bolivia has struggled with their system. They did it, and I know that there are very strong judiciaries in Latin America — for example, Colombia, Argentina, Brazil, Chile, they have very, very, very robust judiciaries. So I don’t think we will see reforms like this. The OAS [Organization of American States] came out and recommended that nobody endeavor to try a reform like this. They would not recommend it for other countries. However, I do worry that it will have a chilling effect on justices in Latin America and on Supreme Courts in Latin America. That is a worry.

FM: Do you think you have an opinion from your tenure that you are most proud of?

AGOM: Several. It’s a privilege to be on court, any court, and it’s a huge responsibility, because you touch lives and you transform lives, like few other places. I would say the social rights area is where I am proudest of. Same sex marriage is definitely up there, abortion is definitely up there. Indigenous rights decisions are up there. Environment. And one which I particularly did a lot, was with criminal procedure and rights of the accused. There are several there that I’m very proud of. So, yeah, it’s a privilege, and it was incredible to be able to touch lives that way.

FM: Do you have a favorite historical court opinion?

AGOM: Several. That’s a very interesting question. Footnote four of Carolene Products, I think, would be up there. Marbury v. Madison would definitely be there. From the Inter-American Court, I think Radilla, which transformed the Mexican judiciary.

There are several, but I’ve never sat down to think about the historical ones.

FM: Mexico experienced over 70 years of one-party rule, only faltering in 2000. And so what lessons do you see in this triumph over one-party rule that you think are important to keep in mind, both from Mexican and from a U.S. perspective?

AGOM: I think how fragile democracy is and how easy you can lose it, and it’s something people generally take for granted until it’s too late. And I think citizens have to really worry and take some time out and think about democracy and what type of democracy they want. It’s a very important question, and it may seem like you can take it for granted, but you can’t.

There’s an anecdote about Benjamin Franklin, leaving the Congressional Convention in Philadelphia, and he walked out, and a woman came up to him, and she said, ‘so, Mr. Franklin, what do we have a monarchy or a republic?’ And Benjamin Franklin replied, ‘a republic, if you can keep it.’ And I think those words are very, very important today. So I think the biggest lesson out of 70 years of one-party rule is you can lose a democracy very quickly.

FM: This semester you’re teaching a course on constitutional backsliding. What do you think is the most important takeaway you hope for your students to leave the class with? Maybe it’s just what you said.

AGOM: It’s just what I said. You have to be vigilant. Nobody else is going to take care of democracy but the citizenship and the citizenry. And the ordinary people are the ones that have to find value in having an independent court. They have to find value in having a democracy, because there are other ways to govern, and you can really slide into competitive authoritarian regimes.

FM: How have you found the transition from the bench to the classroom this semester?

AGOM: Oh, it’s been beautiful. It’s been beautiful. Being able to think, to revisit a lot of decisions, revisit a lot of doctrine on the law, constitutional law — which, when you’ree on the court, you’re so busy you don’t have time to reflect. And this time has been enormously important to me, personally, because it has allowed me to gather my thoughts and think about issues that you wish you had more time when you were on the court.

FM: What do you think would be the most impactful reform one could make to the Mexican Supreme Court, short of transitioning away from judicial elections?

AGOM: I think if you couldn’t touch judicial elections, and they were a permanent facet of Mexican constitutional law from here on out, I think you would have to establish some sort of meritocracy to getting on the ballot. Maybe a prior exam, some sort of filter — so that you know that the people that are going to be on the ballot have the knowledge to execute the office that they are being elected to. Judges do technical work, not political work, and if your only requirements are political, you’re creating an incentive for the wrong type of people to get on the bench, and the only way you can correct that is having some sort of merit-based process prior, for those people to getting on the ballot. I think that would be the most important change you can make.

Also, it’s not just about the election. They also created an agency which oversees and sanctions judges. And the fact that they are elected creates an incentive to politicize the overseeing of a judge’s work. So the real worry is whether they are going to use a political criteria to sanction judges for the decisions they make. And I think that has to be revisited as a structural issue also, because it strikes at the independence of the judiciary and of the judicial work, and that’s very erosive to a healthy judiciary.

FM: You attended Harvard nearly 30 years ago, and so in your short time back, what do you think you’ve found to be the most striking differences on campus?

AGOM: They’re a lot softer on the students than back in my day. I think that’s been a big change. I remember it was not pleasant. I understand why, and it’s probably better, but I think that's a big difference. I don’t see the JDs and the LLMs suffering like I used to see.

FM: Do you think you had a favorite class when you attended?

AGOM: Oh, yeah, Federal Taxation with Al Warren.

FM: And least favorite class? Or are you going to plead the Fifth on that one?

AGOM: Oh yeah.

FM: What is the best book you’ve read in the last year?

AGOM: I picked up, before coming here, “These Truths” by Jill Lepore. It’s on the history of the U.S. I think it’s maybe a 10-year-old book, but I really enjoyed it. I just wanted to brush up on my U.S. history before coming back to the U.S.

FM: I’m not sure they’re very authentic, but can you weigh in on the Felipe’s versus Jefe’s debate here?

AGOM: Yesterday, I had dinner with the Mexican LLMs, and we had this exact discussion. And hands down, they all voted, and I think it was unanimous. Tenoch is the most authentic restaurant, according to the Mexican LLMs at Harvard Law School.

FM: Then it’s official.

So now that you’ve stepped down from the court and started teaching, what do you see in the future for you, in the next five or 10 years?

AGOM: Oh, that’s too far away for me. I’m just enjoying the here and now, and I’ll worry about that when it presents itself. For me, right now is a moment of quiet reflection and teaching and giving back a lot of what I had the privilege to learn in this last decade.

—Associate Magazine Editor Corey Becker can be reached at corey.becker@thecrimson.com.