Ten days of vertigo and bewilderment at the Court

It took the Supreme Court more than two years to resolve, without addressing the merits of the debate, its first case linked to the land law and Javier Milei's DNU that repealed it. It took less than two weeks to find a solution that allowed it to reverse the effects of that ruling. These were days of confusion and vertigo at the Court, normally parsimonious, which shortened to the maximum all the deadlines of the second case, to the point that two substitute judges had little more than one night to sign one of the most extreme precautionary measures, in an "extraordinary agreement," convened from one day to the next; an agreement that in reality consisted of setting the date and time of the new ruling they would issue, because the judges never met, neither in person nor virtually. During the handful of days in which, as a result of the Court's first ruling, the sale of land to foreigners was allowed without limits, the opposition grew hopeful of bringing down the entire gigantic DNU 70/2023 of Javier Milei, and the Government was forced to rush unforeseen maneuvers to prevent that from happening. On social media, criticism of the Court dominated the debate and, within the court, which had issued the first ruling unanimously, old and new internal rifts once again came to light. This is the chronology of the judicial saga of the land law, day by day: Tuesday, September 29. AN UNEXPECTED RULING Ricardo Lorenzetti, Carlos Rosenkrantz and Horacio Rosatti Marcelo Manera - LA NACION In its Tuesday agreement, the Supreme Court includes a surprising ruling, which it releases to the press among the most significant rulings of the day. With an exclusively procedural argument, it overturns a ruling by the Federal Chamber of La Plata which, at the request of a group of Malvinas war veterans, had declared unconstitutional an article of Milei's gigantic DNU 70/2023, and that decision has a high-impact effect: it causes the land law to cease to be in force. Consequently, all restrictions on the purchase of land by foreigners fall away. The chosen case and the timing are surprising. The Court had this case, ready to be resolved, since May 2024. It has no deadlines or agenda it must follow (something that courts in other countries do have, and which the Court implemented for a few months, but soon abandoned because it conditioned its movements). The choice of case is not understood because, if it wanted to rule on DNU 70 — something it has been asked to do for years — it had other cases, such as the CGT's petition, in which there is even an opinion from the Attorney General against the validity of the decree. And the timing is baffling: why now? What months earlier would have been read as a clear victory for the Government at the Court is now a very uncomfortable ruling for a President who displays his nationalism like never before, after the national team players displayed the flag reading "Las Malvinas son argentinas" at the soccer World Cup. Wednesday 30. THE OPPOSITION REACTS The opposition activates in Deputies against the Court's ruling Santiago Filipuzzi The Court's ruling generates an avalanche of criticism that the judges who issued it did not expect. The opposition acts quickly, maintains that the land law must be restored and, to that end, threatens to convene a special session in the Chamber of Deputies that would bring down the entire DNU 70/2023 — and not just the article that repealed the land law. This decree had already been rejected by the Senate, but Deputies had never taken it up. Everything indicates that the votes are not there, but the Government is left in a very uncomfortable position. At the Casa Rosada they say they are surprised by the Court's ruling. In San Martín de los Andes, a meeting of judges is being held in which the three justices of the Court will participate, without crossing paths, over the following two days. On Wednesday night, Lorenzetti, already in Neuquén, agrees with Rosatti that they must give a public explanation to curb the readings — in their view, unfair and disproportionate — that were being made of the ruling. Thursday 1. AN UNUSUAL OFFICIAL STATEMENT Early in the day, spokespeople for Rosatti and Lorenzetti send journalists a "clarifying" statement from the Court, which the court does not officially publish or disseminate through any of its formal channels. Hours later, Rosenkrantz will make it known that he had neither participated in nor consented to the drafting or dissemination of that document. In that statement, the Court complains about the criticism, says that in the veterans' case only a procedural aspect had been resolved, and warns that the scenario could change if someone raised another case "with the same object." By the afternoon, that case appears at the Court. At 4:22 pm, the Río Negro legislator Magdalena Odarda, who chaired the National Institute of Indigenous Affairs during Alberto Fernández's government, submits a brief to the court saying that she had an injunction against the repeal of the land law filed together with an environmental association and indigenous groups, that this petition had been considered "connected" to that of the veterans and that, therefore, it had not received specific treatment. She argues that her standing is different from that which was rejected in the veterans' case. She requests that, as a precautionary measure, the limits of the land law be restored. Protest in front of the Le Village hotel, in San Martín de los Andes, against the Supreme Court justices Gustavo Castaing Meanwhile, Rosenkrantz arrives at the San Martín de los Andes summit. He does not cross paths with Lorenzetti, who leaves earlier, nor with Rosatti, who arrives later, but he does with protesters demonstrating against the ruling in front of the hotel where the judges are meeting. "Supreme Court, traitor to the homeland," reads one of the signs. Behind closed doors, Rosenkrantz gives a speech that rekindles another internal rift at the Court: he demands that the judges who sit on the Council of the Magistracy improve the process for selecting magistrates. He and Lorenzetti sent a project to the Council in March to reduce "discretionality" in the selection and asked that it be approved as soon as possible and without changes. Rosatti, who chairs the Council, made it known that this was not going to happen; that the project would be "enriched" with other contributions. It is an especially delicate matter: on the same day that Lorenzetti and Rosenkrantz publicly denounced the excesses of discretionality, the Council approved the shortlist for a judge headed by Rosatti's son, who had climbed positions in the competition thanks to a final step of the process that Lorenzetti and Rosenkrantz were now asking to regulate. Friday 2. ROSENKRANTZ CALLS FOR FORTITUDE Carlos Rosenkrantz Santiago Filipuzzi The Court's internal rift shows itself again. "One must have fortitude to withstand criticism of rulings," says Rosenkrantz, in a clear allusion to his colleagues' reaction to the questioning over the land law ruling. Monday 5. THE OPPOSITION APPLIES PRESSURE Diego Santilli Fabián Marelli The opposition is a dozen votes away from opening in Deputies the debate to bring down the entire DNU 70. Cabinet Chief Diego Santilli and the president of the Chamber of Deputies, Martín Menem, negotiate to contain their allies. Tuesday 6. URGENT CALL TO SUBSTITUTE JUDGES Demonstration against the Court in front of the Palace of Justice Nicolas Suarez Peronist and left-wing organizations stage a protest in front of the Palace of Justice. The Court surprises with an announcement: it will draw lots for two substitute judges to hear another case linked to the land law. It is the one filed by Odarda, Árbol de Pie, and two indigenous communities. At 11:29 am the Court announces that the drawing of the substitute judges will take place at 4:30 pm. Odarda files a motion saying that, with the little time the court gave her, she cannot make it from Río Negro to witness the drawing. At 2:54 pm, the Court responds that they may participate remotely. The appellate judges Diego Barroetaveña (Cassation) and Juan Ignacio Pérez Curci (Federal Chamber of Mendoza) are drawn. The need for substitute judges makes it evident that the three sitting justices do not agree on the solution to be adopted. Wednesday 7. THE COURT SHORTENS DEADLINES Diego Barroetaveña and Juan Ignacio Pérez Curci, the substitute judges drawn to sit on the Court. The tribunal reduced the deadline to recuse them in the Árbol de Pie case from 72 hours to 24 At 5:09 pm, Sergio Miguel Nápoli, secretary of the Court, signed a resolution announcing that "by order of the Tribunal," the parties are notified of who the drawn substitute judges are and are warned that "given the particular circumstances of the case" (particularities that are never detailed), "the deadline for that composition to be consented to must be shortened, and it is set at 24 hours." The haste is such that the resolution adds: "For that sole purpose, non-business days and hours are hereby enabled." Thursday 8. A RULING AGAINST THE CLOCK Carlos Rosatti votes in the elections of the judges who will sit on the Council of the Magistracy, last Thursday In the afternoon, when the 24 hours have elapsed and the composition of the tribunal is settled, Rosatti convenes his colleagues and the two substitute judges to an extraordinary agreement for 9 am on Friday. By then, the ruling must be finished. Judges and substitute judges exchange calls until late. A precautionary measure is coming. Rosenkrantz will not join it. Neither of the substitute judges is a specialist in the subject they are discussing — both are criminal law experts — and if in general substitute judges usually have limited influence on the drafting of the rulings they sign, in this case, with so little time, even less. Both join the majority vote. Friday 9. THE COURT RESTORES THE LAND LAW Horacio Rosatti arrives at the Palace of Justice early on Friday Nicolás Suárez Early in the morning, the Árbol de Pie case goes to "Coherencia," the area of the Court's Jurisprudence Secretariat that performs the final review of draft rulings to prevent errors. The ruling is already finished, including Rosenkrantz's dissent. The judges and substitute judges sign it (with electronic signature) from their offices. At no point do they meet. By majority, the Court decides that the case must return to Bariloche for the first-instance judge to handle it and decide whether the repeal of the land law is unconstitutional, but the key to the ruling is that the Court itself issues an "interim" precautionary measure that restores the limits on the sale of land to foreigners. In practice, it reverses the effects of its own ruling from the previous week and relieves the Government. Rosenkrantz issues a harsh dissent in which he says that "the discontent that the ruling" of the tribunal last week "may have caused in various sectors of society does not justify adopting decisions that the Constitution and the laws do not permit." Lorenzetti gives an interview to A24 and maintains that one ruling was not a reaction to the effects of the other. That they had to hear the veterans' case first because they are collective proceedings and that one was filed first. That caused the second one (the Árbol de Pie case) to be left for "the agreement of the following week," he says, even though the petition the Court has just resolved, strictly speaking, only entered the tribunal last Thursday. He says that no one can doubt his commitment to the environment and complains about the "digital smoke" of complaints on social media. The Árbol de Pie case returns to Bariloche, for the first-instance judge to handle, but with the land law in force, no longer urgent. Type of work: Original News