Every morning, while Horacio Daniel Rosatti reads the news, he imagines how the items line up with the Constitution of Argentina. When he reads about a presidential candidate’s proposal to dollarize the economy, he thinks about article 75, section 19. When he reads about an environmental issue, he compares it to article 41. And so on and so forth.
A professor of constitutional law for over four decades and the author of multiple publications on the subject, he served as minister of justice under former President Néstor Kirchner (2003-2005) and was appointed to the Supreme Court by former President Mauricio Macri, in 2016. Today, the 67-year-old – now president of his country’s highest court – faces a political trial that has been brought forth by President Alberto Fernández and Vice President (and former president) Cristina Fernández de Kirchner.
Rosatti – who edits Supreme Court rulings on a computer that doesn’t have internet – recently published two volumes on the history of Boca Juniors (a famous local soccer team), as well as his first novel. In the past, he has written short essays on death, prejudice and justice. He’s also completing an essay on the Joker and laughter, as well as a thesis in the field of Political Philosophy. This would be his third doctorate: he already holds two PhDs, in History and Law.
In his interview with EL PAÍS – the first with this newspaper since he became president of the Supreme Court – he spoke about the Peronist political movement, the place of football in Argentine public life, the state of justice in his country and the tensions he has with political power. He also discussed the constitutional limitations that the proposed dollarization of the economy – top of the agenda for right-wing presidential candidate Javier Milei – could potentially face.
What follows is a summary of two extensive early-morning conversations in his apartment in the Recoleta district, in the capital of Buenos Aires.
Question. Argentina is in a situation of socio-economic fragility, as well as in a place of political uncertainty due to the upcoming presidential elections. How much does this situation weigh on the decisions of the Supreme Court?
Answer. When I arrived at the Court, it was said that, during election years, the Court doesn’t have to rule on certain issues. But in Argentina, there are elections every two years. We have to rule on complex cases all the time. When there’s a case, there are people waiting for a decision. Of course, there’s a certain sensitivity, a certain amount of common sense… but no, the [political scenario] doesn’t inhibit one’s own competence.
Q. In one of your books – The Word of the Supreme Court, based on your doctorate in History – you expose the growing demand of Argentine society to resolve its conflicts through the justice system, since the return to democracy in 1983. This is despite the fact that the judiciary is a highly-questioned institution.
A. I don’t know whether to call it a contradiction, because it would be very disrespectful to the judiciary to say this. But when the question is asked, “how would you resolve this issue?” the answer tends to be “with more of this institution.” This usually happens with the police and the justice system. In other countries, the perception of the judiciary has an approval rating of between 30% and 35%. The growing judicialization comes from an inability in society to resolve conflicts without a judge. [There’s also] a growing shift of responsibilities from political to judicial power.
Q. The so-called judicialization of politics...
A. It doesn’t only happen in Argentina. I was minister of justice – on one side – and now I’m president of the Supreme Court, on the other side. The incomprehension is reciprocal. The politician tends to think that the judge is blocking the changes he wants to carry out. And the judge tends to believe that the politician wants to carry out changes in any way possible, even if [the changes] aren’t in accordance with what the law says. So, there we have a structural tension. It happens in Argentina, it happens in Latin America, it happens in different parts of the world. There are pathologies in all places.
Q. What would be the Argentine pathology?
A. [Laughs] The pathology is wanting the judiciary to participate in everyday politics and for [the politicians] to co-opt justice. We, in the court system, resolve cases. The only way we don’t solve cases is if they don’t reach us. My guide is always the Constitution. There are themes that have new edges. Equality, the extension of equality, the incorporation of renegade sectors, discrimination, environmental issues, consumer rights… all of this comes from the Constitutional Reform of 1994.
Q. Why are you against the expansion of the Supreme Court, which currently has four members and wants to fill a vacancy?
A. Oftentimes, [people think that] more judges means that more cases are resolved. In fact, it’s the other way around. The files have to circulate among all the members of the Court. Imagine, if there are five of us: they circulate among five people. But if there are 50 of us, they have to circulate among 50 members. If you want more speed, fewer cases have to come to the Court. We are at our limit.
Q. Four years ago, in an interview with CNN, you used the metaphor of an “oven” to refer to the federal courts in the district of Comodoro Py, which handle – among other things – sensitive cases of government corruption. You said that Comodoro Py moves “in the heat” of political situations. Do you still feel the same way?
A. Those issues have been overcome…
Q. So there was an improvement in those courts?
A. There was an improvement and there has been a generational change. A subjective change, but also a change in objective conditions. There were issues, such as methodologies that don’t stand the test of time. I see another mentality today.
[The problems I mentioned] were also linked to the very strong [influence] of the intelligence services – I don’t know if it was regular or irregular – which has been decreasing substantially. The Argentine criminal justice system [is housed] in a single building. When a criminal judge from the provinces reads [about this external influence], it makes him very indignant, because he believes that everything happens there. But not everything happens there.
Q. I read a paragraph from your treatise on constitutional law about the adoption of a foreign currency as national currency: “Could the Argentine state adopt a foreign currency as its own national currency? Constitutionally, this possibility is prohibited, for the following reasons: because it would be a currency that the national state could not issue... and because it would be a currency whose value could not be set by the national state.”
A. I was on the drafting committee of the 1994 constitutional reform. We incorporated this clause. What does the clause say? It requires Congress to defend the value of the currency. I mean, clearly, we have to have a currency. This doesn’t mean that there cannot be others… but you have to have a currency. I always tell my students of Constitutional Law: it’s one thing for me to like Julia Roberts, and another thing for Julia Roberts to like me. Currencies have a backing in the economy of each country. I cannot cast Julia Roberts – I can only cast Horacio Rosatti. And how do I do this? I have to defend the value of my currency. Now, if in defending the value of the currency the strategy is to link it to another – to make it a floating currency, or to have a basket of currencies – this is a political decision. The judiciary cannot intervene in political decisions. But I could intervene if the politicians suddenly say “there’s no currency here.”
Q. If an attempt were made to eliminate the Argentine peso, would it be unconstitutional?
A. What’s the currency of a country? The one that it issues: it can be peso, or patacón, or whatever. If dollarization eliminates the Argentine currency, it’s unconstitutional. If the currency is abandoned and another one is [adopted], that’s a path that, for me, is unconstitutional.
Q. So the proponents of dollarization – which is in the public conversation due to Milei’s proposal – should take note of this constitutional limitation.
A. Well, all the candidates should read the Constitution. This is the word of the Constitution… it’s not my far-fetched, twisted interpretation. I insist, there may be a thousand implementations by economists on the subject, but you must have a currency that is issued in Argentina. I cannot regulate the value of another country’s currency. That fantasy must end. A debate like this has been raised in a Manichean, Argentine style: everything or nothing. Dollarization, or no dollarization. I’m talking about the Constitution, I’m talking about what I’ve already written – I’m talking about the rulings I’ve already signed on this issue.
By dollarization, I can understand two things. One is dollarization in the strictest sense: I switch from one currency to another. Clearly, I cannot defend the currency of the United States, because I don’t have the resources, because I cannot issue it, because I cannot regulate the monetary base. There are, however, other things that can be done and have already been done. Like linking the value of a currency – your own – to a foreign currency, or to a set of currencies.
Q. Would that be the convertibility law, which established the parity of the peso with the dollar in 1991?
A. That’s an example. So, Argentina says “one peso equals one dollar.” But it’s not what the United States says, [they don’t say] “one dollar is worth one Argentine peso.” It seems to me that when we talk about this – and this with all due respect to politicians and economists – [there’s a lack of understanding]. But this is the Constitution and the Constitution governs us all: the economist, the politician, the judge. When somebody says “dollarization,” it seems to me that they should be a little more precise and explain what exactly they mean by this.
Q. This year – at an event hosted by the United States Chamber of Commerce in Argentina – you spoke about indiscriminate issuance of the peso and the unconstitutional nature of this. Isn’t this comment about the excessive printing of money a criticism of the national government?
A. Well, what did I say earlier? If I’m going to defend the value of the currency, one way to [hurt it] is via the uncontrolled issuance of the currency. Now, what does uncontrolled mean?
The technocrats will determine [how much needs to be printed] depending on the population’s needs, the economic base, the reserves, whatever. The economy is guided a lot by psychology and expectations. Sometimes I may not have [much money] in the Central Bank, but if expectations are met, it’s enough. And, sometimes, I can have everything… but it’s still not enough, because expectations aren’t being met. Clearly, the unchecked [printing of a currency] doesn’t fulfill the constitutional mandate of defending the value of the currency.
Q. At some point, Javier Milei – who is now leading the polls for the October 22 presidential election – said that it would be ideal for the Supreme Court to appoint the minister of justice, rather than the president. What do you think of this idea?
A. I would hope that he would make that announcement. I appreciate that the opinion of the Court is respected – that’s the conclusion I draw from the candidate’s statement. [That being said], in no way am I saying that we’re going to propose someone. The role corresponds to another branch of power.
When he sleeps in the city of Buenos Aires, the president of the Supreme Court wakes up to the sound of the alarm clock that was owned by General Juan Domingo Perón during his years of exile in Madrid. He also keeps his many house keys – divided into four bunches – a few feet from his bed.
An enthusiastic collector of objects, Rosatti became a Peronist during the Falklands War. He was 27-years-old. He saw Peronism as a big tent – one that could include leftists and rightists, people from the north and the south, upper-income and lower-income.
Rosatti grew up in a non-Peronist family. His father was the director of personnel in a company and his mother was a teacher. He graduated as a lawyer at the age of 19. He had an entire political career in the city of Santa Fe, becoming legal advisor to the mayor. Then, he had two stellar moments in national politics: he was vice president of the 1994 Constituent Assembly and President Kirchner’s minister of justice in the first two years of his administration. After this, he took a decade-long sabbatical from public life.
In his home in Santa Fe, he keeps several objects that have to do with the history of the Boca soccer team, including autographs from players, t-shirts, posters, game plans… and even the handprints of the goalkeeper Antonio Roma, preserved in a cement-based artwork. Soccer is one of his passions. In Rosatti’s latest book – A History of Boca Juniors – his new book details 100 years of the successful club’s history.
Q. In your book, you compare the history of Boca Juniors with modern-day Argentina: “The history of Boca is the history of collective achievements in a country of ‘every man for himself’ – a history of a militant commitment, amid the context of the Argentine ego. It’s a story that makes us face the painful evidence of what we haven’t been able to achieve in society and politics.”
A. Yes, [Boca has managed to] sustain something, maintain it, achieve results over time based on effort. But that’s been tough in our country, it’s difficult to find continuity. There have been more breakups… especially in the 20th century. The Argentine, in general, expresses his affections, his solidarity, his feelings for his family, his friends and his soccer club. We get excited about these things… today, there’s a passion for the Argentine team and for Messi. We were able to get organized [in the 2022 World Cup] after many failures. Until this particular group of players came around, Argentine fans always preferred their local club [to the national team]. And this is a fact that also says a lot about us as a society.
Q. You maintain that Boca is a passion that has lasted longer than any other Argentine passion. How did you come to this conclusion?
A. From a qualitative point of view, the passion of the fan – of any team – transcends other passions. There are sentimental passions that can last a lifetime. It’s very difficult for someone to change clubs… I would say that it’s almost impossible. From a quantitative point of view, Boca – from the surveys from the 1920s or 1930s onwards – was always the club that was preferred by the majority. I haven’t been able to find another Argentine passion that has been so sustained over time. Well, maybe Peronism. But we’d have to review how much passion Peronsim still has. It’s a [political] phenomenon with ups and downs, especially in recent years.
Q. And how do you explain – thinking about those ups and downs – that the ruling Peronist political coalition came third in the August primary elections?
A. I haven’t studied it, nor have I delved into it. I think that perhaps passion is closely linked to a certain content. When that original content mutates and there’s more pragmatism, well, then reason surpasses passion.
Q. When you were part of the first Kirchner government (his wife – now vice president – governed for two terms after her husband), didn’t you feel like you were participating in an epic moment?
A. Yes. The first two years that I was there, yes. The first two years of the government of [Raúl] Alfonsín (1983-1989) and the first two years of the government of Néstor Kirchner seem to me to have been two, let’s say, brief periods of enormous enthusiasm. We dealt with the issue of external debt and we did it with enormous passion, because we were told that Argentina needed 30 or 40 years to get out of debt.
Q. Where would you place the end of that epic journey?
A. I left in 2005.
Q. Do you maintain your affiliation with Peronism?
A. No, when you start your career in the judiciary, you have to cut [your affiliation] and also forget about it. My 20 truths are now the Constitution. The only photo with a politician that I have on my desk is with Alfonsín, with whom I shared the 1994 Constitutional Assembly, which was the last political act to achieve broad consensus. After ‘94, I never saw an assembly that brought together so many different opinions that ended up swearing by the same Constitution.
Q. Did you stop adhering to the ideas of Peronism?
A. We should talk about what’s understood by Peronism today. Being a Peronist today is like saying “I’m an Argentine.” But I don’t want to shy away from the substance of your question… I would say that I adhere to the spirit of the Constitution. And the Constitution has a government program and has a relationship between the society and the state, which is a humanized form of capitalism. I adhere to that. I adhere to the spiritualist vision in the treatment of the environment and to everything that’s in the Constitution in several articles that were incorporated in the 1994 reform.
Q. Macri – who appointed you as part of the Peronist representation on the Supreme Court – writes in his presidential memoirs that he regretted the appointment.
A. It’s the best compliment that can be given to a judge. Let them say “he didn’t vote the way I wanted him to.”
Q. Do you think it was wrong for you to accept the designation by decree?
A. I didn’t take office until I had the agreement of the Senate. I had 60 Senate votes out of a total of 72.
Q. Cristina Fernández de Kirchner (president from 2007 until 2015 and currently the VP since 2019) has mentioned the Supreme Court several times this year. She has called it “an unworthy mess” and a “political-judicial mafia.” She has proposed a new institutional design that contemplates allowing for the removal of judges. Are you open to this discussion?
A. I don’t express myself about other people’s opinions. I think it’s a very deep discussion. The division of powers that Montesquieu implemented several centuries ago is a design that creaks from time to time. Just like the limits of democracy to solve people’s specific problems. Every so often, there are tensions. There are countries where judges are elected by the citizens. There are constitutional controls – which is what the Argentine Supreme Court and the American Supreme Court basically do – and there are countries where [constitutional matters are kept in a separate court]. In some jurisdictions, controls are more parliamentary than judicial. I don’t see anything dramatic in that. You have to consider it, like you’d consider everything. [Removing judges] would require a constitutional reform. And constitutional reforms can be achieved with various political agreements.
Q. At the moment, there’s a delay in a ruling on a case that has to do with the sale of American dollars in the future. Argentina’s Federal Court of Cassation has already ruled that economic policy decisions cannot be judged. The issue has been stuck in court for more than two years.
A. The Supreme Court doesn’t have a court above it. So, to achieve a result, you have to have consensus. The necessary votes. It’s not that easy.
Q. The present administration believes that the Supreme Court has exceeded its powers in forcing the federal government to increase the part of the tax revenue it sends to the city of Buenos Aires each year. They initiated a political trial against the Court at the beginning of 2023.
A. I don’t think it’s my place to give an opinion. Impeachment is an institution – it’s in the Constitution, it’s a power of Congress. The Supreme Court has offered full collaboration in all the reports that have been requested.
Q. On March 1, at the beginning of the legislative session, President Fernández severely criticized the Supreme Court. What caught your attention the most about the things you heard?
A. Every March 1, the judges have to be present, because we represent the judicial branch. But only the president gets to speak. It’s their right to say what they want to say.
Q. But you were once a minister… are you indifferent to the things he said?
A. The only thing that unnerves me is when the Constitution is violated. I have a lot of inner peace. I’m a very happy human being, very grateful for life. I have my passion, my concerns, my hobbies. The only thing that bothers me is the misfortunes that my affections may have.
Now, those aren’t pleasant moments. I’m not going to say that I don’t care. But it makes me more nervous that Boca will lose the Libertadores finals…
Q. That worries you more than the speech by Fernández?
A. Yes, because soccer is part of my world, the world of my affections. The other is the world of responsibility.
Q. Is it your intention and will to continue on the Supreme Court?
A. Yes, my intention is to continue until I’m 75-years-old. You know how there are people who hate routine and there are people who love routine? I’m one of those who loves routine. For me, my routine is getting up, bathing, shaving, having mate (coca tea) with my wife and going to work. From home to work and from work to home. That’s my life.
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