Fundamentally, a court differs from a legislature, so it would be strange were a state’s supreme court to take it upon itself to act as the state’s legislature as well. In late March, 2017, Venezuela’s Supreme Court did exactly that, ignoring the qualitative difference between interpreting contested law and legislating. The court wrote that lawmakers in the legislature were “in a situation of contempt,” and that as long as that situation lasted the justices would “ensure that parliamentary powers [are] exercised directly by this chamber, or by the body that the chamber chooses.” Understandably, Julio Borges, the head of the legislative Assembly, exclaimed, “They have kidnapped the Constitution, they have kidnapped our rights, they have kidnapped our liberty.” Luisa Ortega, the Attorney General,” wrote that the court’s decision represented “a rupture in the constitutional order.” This was true both in regard to the basic, or fundamental distinction between judicial review and legislating and democracy itself.
The president and Chief Justice of Venezuela. An presidential over-reach? (Source: Reuters)
It was no mere coincidence that Borges’s party was not that of the state’s president. Importantly, both the legislators and the president had been democratically elected (assuming fair elections). To make this point, Borges added, “The people chose us through a popular vote.” So for the justices to declare that legislative powers could be exercised directly by the court represents an affront to representative democracy.
Tellingly, in the wake of popular protests, the Court reversed parts of its decision only days later. In an address, the court’s chief judge insisted that the “decisions of the court have not divested the Parliament of its powers.” The Court had suppressed parts of the prior decision to nullify the legislature and allow the court to write laws itself. The chief justice said the Court is “only an arbiter” and thus should not be in conflict with other branches of government. I would add that a court should not take on the functioning of another branch, for besides the risk to democracy itself, jurisprudence is qualitatively different than law-making and execution of the law. Interpretation of a law presumes that the latter has been promulgated and enacted for there to be a conflict over it. Additionally, to both enact and interpret the same law would occasion a conflict of interest wherein the judicial interpretation would favor the legislative intent. In fact, the interpretation could simply be a continuation of the intent! So in the end, the separation of powers not only protects democracy, but also prevents a conflict of interest in governance.
 Nicholas Casey and Patricia Torres, “Venezuela Muzzles Legislature, Moving Closer to One-Man Rule,” The New York Times, March 30, 2017.
 Nicholas Casey and Patricia Torres, “Venezuelan Court Revises Ruling That Nullified Legislature,” The New York Times, April 1, 2017.