Experienced politicians and legislators have always known that by shaping the agenda specifically, they can profoundly affect and influence the decisions of others. This is the essence of the “Art of Political Manipulation”, as William Riker described it three decades ago when analyzing the way American politicians act. The Supreme Court of Justice of the Nation, unfortunately, now offers clear evidence that the same phenomenon is fully in force not only in the Mexican political system but also in our judicial power.
It is a mistake to limit the observation to last week’s vote on the unconstitutionality action of the reform of the Electricity Industry Law (LIE). There has been strategy and agenda formation on this issue for many months. To begin with, Minister Loretta Ortiz was not the original person in charge of drafting the project to be discussed. She only inherited the responsibility (along with the position) when Minister José Fernando Franco retired. The interesting thing is in the times: the Court received the action of unconstitutionality on April 4, 2021; Minister Franco did not retire until December, eight months later. But, for some reason, for this very sensitive issue, the president of the Court chose to have the project of an incoming minister, nominated by this government and with less than five months of experience as a minister. Perhaps more alarmingly, this also implies that the president of the Court ruled out having the project of a minister with 15 years of experience as a minister.
In addition, implicitly, the minister president ruled out voting with the previous composition of the court. He preferred that a vote be taken and that the Court have four ministers nominated by this Administration. Is it a coincidence that the result is so aligned with the preferences of the minister president? Just to review, Minister President Zaldívar voted in favor of Minister Ortiz’s project, who is perceived as the most loyal minister to President López Obrador’s agenda. From Minister Franco, by the way, the opposite position was sensed.
There is more. As Juan Jesús Garza and Javier Martín explained in their Reform article, the way in which the invalidity of the LIE reform was avoided, already in the vote, is equally suspicious. “In general, the ministers of the Court tend to vote for or against the invalidity of the contested norms… It happens, however, that on this occasion the Court proceeded differently.” What was decisive on this occasion was the disagreement between ministers González Alcántara and Gutiérrez Ortiz. Not that the norm was unconstitutional: they both agreed with that. What they could not agree on was the reason for the unconstitutionality. One argued that only free competition justified unconstitutionality in this context; the other that the exclusive key was the healthy environment. Of course, under the traditional voting mechanism that Garza and Martín describe, this disagreement would have been irrelevant. But who by definition controls the formation of the agenda and discussion formats knew how to take advantage. By putting the voting’s emphasis on argument types, he fabricated a result that magically aligned with his preference. William Riker was validated: this is how things work here too.
All this, unfortunately, is even more alarming in view of the constitutional reform in energy matters. If with astute management of the judicial agenda these results can be produced with the current constitutional form, can you imagine what this Court could avoid invalidating if the CFE acquires the constitutional right to produce at least 54% of the country’s electricity?