Journalists and democracy advocates sounded the alarm last month as former Mexican President Andrés Manuel López Obrador spent his final weeks in office pushing forward changes to the country’s constitution. Of particular concern was what The New York Times referred to as “the most far-reaching judicial overhaul ever attempted by a large democracy.” In September, the nation’s Congress passed a constitutional amendment requiring judges to be elected directly by the people, rather than appointed by an independent body. Critics decried the move as an attempt to eliminate pushback against legislation passed by the legislature’s majority party, Morena. 

While undoubtedly a significant change, the September amendment was only one part of López Obrador’s more general strategy to strengthen the executive branch by undermining the judiciary. In April, five months before it overhauled the judicial selection process, Congress made another constitutional change to its legal system––one that flew largely under the public radar. It decreased the power of Amparo law by eliminating courts’ abilities to suspend potentially unconstitutional laws even in the most exceptional of circumstances. In doing so, the legislature stymied a tool, which according to Mexican Judge Hector Fix Zamudio, many view as “the most important procedural device in the Mexican legal system.” 

Amparo law is codified as a bedrock principle of Mexico’s legal system through the Constitution of 1917. It allows courts to suspend or overturn unconstitutional laws, similar to the US process of judicial review. Amparo serves as a crucial means of protecting human rights and the rule of law because it ensures that the legislature cannot pass laws that deprive individuals of their civil liberties. 

To understand the importance of Amparo, we need not look further than its invocation over the past couple years. In September of 2023, the Supreme Court utilized Amparo to overturn a national abortion ban, deeming it an infringement on women’s rights under the Constitution. And in April of this year, the Court struck down two attempts to consolidate executive power through Amparo claims: one that would have handed over control of the National Guard to an executive agency and another that would have slashed money and personnel from the country’s nonpartisan election watchdog.   

Until this year’s change, an important feature of Amparo was that courts could suspend laws that may create significant injuries during pending legal proceedings. This feature, “suspension of the act complained of” (suspensión de los actos reclamados), existed in order to prevent unrectifiable damages before they occurred. Now, courts no longer have this power. 

It is essential that courts be able to suspend laws for the general population because the harm that legislation inflicts upon plaintiffs often impacts other members of society. To force all people impacted by a policy to bring their own lawsuits is legally inefficient because it would increase the filing of lawsuits. Moreover, it also harms legal equality because the most marginalized members of society are the least likely to have the resources to bring their own suits. 

Despite the benefits of the suspension power, some have argued that the Amparo change is inconsequential because a court’s power to suspend laws is separate from its ability to make final constitutional decisions under Amparo. However, this distinction is contrived because the purpose of the suspension power is to prevent irreparable harm that would make pending legal challenges moot. For example, imagine a case in which the government claims private property through eminent domain. If the government is able to proceed with seizing and destroying people’s homes as legal challenges are ongoing, many people may suffer irremediable harm before the case is decided. 

Morena’s supporters have also claimed the Amparo reform is important to enable the party to execute its policy priorities. For example, a recent Jacobin article criticizes the courts for recently using Amparo in order to suspend a law that would have increased government control of the energy sector. In the past year, judges also invoked it to stop the party’s construction projects of both the Maya Train and the Felipe Angeles Airport. 

Regardless of one’s beliefs about these individual pieces of legislation, we should be very skeptical of attempts to change the rules of the game in order to enact a party’s preferred policies. Such tactics are quintessential tools of parties that seek to consolidate political power at the expense of institutional stability. From Evo Morales’s requirement that judges be elected in Bolivia to Nayib Bukele’s policy enabling unilateral executive dismissal of judges above 60 in El Salvador, weakening the judiciary is an instrument of democratic erosion. 

And yet, Morena continues to enjoy broad popular support for its agenda in spite of, or perhaps because of, its proposed changes to the judiciary. Indeed, in the June 2 elections, Claudia Sheinbaum won with over 60 percent of the popular vote and the Morena coalition won two-thirds of seats in the Chamber of Deputies. This raises the question: Are popular policies ipso facto democratic? I would argue no. Our conception of democracy ought to transcend majoritarianism. While any strong democracy should of course allow for public input, democracies are not purely instruments of popular opinion. Instead, they are best conceived of as a set of stable (albeit malleable) institutions that both enact popular policies and protect rights. As Andrea Kendall-Taylor and Erica Frantz explain, with the wind of the people’s support at their backs, strongman executives undermine institutional rules under the guise that doing so is essential to their agenda. Leaders who do should be conceived of as threats to democratic institutions even if they enjoy broad support. 

Now, López Obrador’s successor has a choice about whether to use her popularity to restore democracy or to further erode it. Thus far, Sheinbaum has largely remained loyal to López Obrador’s vision for the Morena Party. In fact, she specifically supported his amendment to change the selection process for judges. But with her paradoxical campaign slogan of “continuity with change,” Sheinbaum has the flexibility to determine which of Morena’s policies she will maintain and which she will abandon during her administration. In charting Mexico’s future, Sheinbaum should distance herself from López Obrador by strengthening—or at least avoiding further weakening—of the judiciary. 

As academics, legal analysts, and the media tell the story of democratic erosion in Mexico, they should pay particular attention to Amparo. Without the power to suspend unconstitutional laws, the judiciary is less equipped to protect minority rights. While this may seem like a small change, it is nonetheless a significant one. In their seminal book How Democracies Die, Steve Levitsky and Daniel Ziblatt explain that in the process of democratic erosion, “each individual step seems minor–none appear to truly threaten democracy.” And yet, together, they do. As we look to another term of a Morena stronghold on political power, we should remain wary of future attempts to undermine the judiciary–including through future attempts to weaken Amparo.