—Juliano Zaiden Benvindo, University of Brasília
When delivering his speech at the Brazilian Supreme Court on December 5 on “Public Ethics and Democracy,” Michael Sandel, Professor at Harvard University, could not foresee what was about to happen that very day just some floors above the conference room. Amid a rich debate on the role of ethics for the enhancement of democracies, Professor Sandel stressed that, as a foreign observer, he could at least point out something that in principle seemed very positive for Brazilian democracy despite the serious current political turmoil: how the judicial system has been working in an independent and effective way in the investigation of corruption.
Some hours after Sandel’s speech, Justice Marco Aurélio de Mello, in a unilateral decision, issued a preliminary order to remove Senate President Renan Calheiros from office based on embezzlement charges. Justice Marco Aurélio de Mello’s action raises an interesting issue in light of Professor Sandel’s speech. Is it a sign of independence that Supreme Court Justices can remove the head of another branch of government from office in such circumstances? Or, on the contrary, is it a symptom of a dysfunctional democratic process that would allow individual justices to exercise such unfettered power? How can we assess whether such moves are legitimate or, rather, a form of what we might call abusive judicial activism?
The recent political crisis in Brazil has problematized basic concepts of constitutional democracy. This was the case with the impeachment of President Roussef: whether what took place was a legitimate procedure, a conspiracy, a kind of “abusive constitutionalism” or a coup d’état is a subject that has since yielded significant worldwide consideration. In the aftermath of that impeachment, a proposal for constitutional amendment by the new government that would radically curb public expenditure and thus affect the social core of the Brazilian constitution, has also challenged the concept of constitutional amendment. Richard Albert has used this as an example of what he calls a “constitutional dismemberment.”
The very concept of judicial independence is also at stake. If the Supreme Court has been dubbed the institutional arbiter of the current political turmoil by trying to pacify conflicts, which might justify its activism, it has nonetheless been engulfed by the same political dynamics in which it is supposed to be intervening. Daniel Vargas, Professor at the Getúlio Vargas Foundation in Rio de Janeiro, has argued, for instance, that the Brazilian Supreme Court is not the medicine but rather a symptom of a disease that has spread throughout Brazilian democracy: We, Brazilians, always resort to the Supreme Court whenever we need a political or economic decision, which shows that “Brazilian democracy bleeds more and more.”
Justice Aurélio de Mello’s decision right after Professor Sandel’s speech is thereby not simply a sign of an independent judiciary that keeps its guard up even when the affected individual is the President of the Senate or, as happened some months before by the Court’s unanimous decision, the Speaker of the Lower House (who was ousted and then arrested on graft charges). Nor is it merely a sign that the country has increasingly learned to tackle corruption through its judicial institutions. From a more structural perspective, it suggests self-aggrandizement of the judiciary’s own powers amid deep distrust in the traditional mechanisms of political representation and democratic institutions. Judicial activism therefore increases as trust in democratic institutions declines. It is at least symbolic that Justice Marco Aurélio de Mello’s decision came out the day following popular protests demanding, among other things, the President of the Senate’s removal from office, although the justice denied any relationship.
Justice Marco Aurélio de Mello’s decision caused something of a backlash. The charges were serious, and several people argued that Senator Calheiros could not keep his post as Senate President after being indicted on charges of embezzlement, because, in such circumstance, he could not remain in the line of presidential succession according to the Constitution. Senator Calheiros is however critically important for the new government’s proposals for constitutional change, especially because his Deputy President is from former President Roussef’s Worker’s Party and is therefore likely to oppose the reforms. Right after the decision, serious turmoil broke out, with the Senate resisting the ruling. Distinct sectors of the government, Congress, and members of the Supreme Court promoted what seemed a negotiated solution to calm the situation. Two days after Justice Marco Aurélio de Mello’s ruling, the majority of the Supreme Court decided that, although Senator Renan Calheiros would be removed from the line of succession, he could still remain Senate President.
Professor Michael Sandel’s speech is remarkable in this context, not only because of the timing but also because its title – “Public Ethics and Democracy” – reminds us that things can look different when examined more closely. Beneath the appearance of independence of the Brazilian judicial system lie political strategies and behaviors that challenge both public ethics and democracy. Public ethics, because it is expected that judicial decisions should be the outcome of constitutionally motivated judgments rather than political bargains. Democracy, because judicial activism, practiced this way, can be not only a symptom of the disease of our democracy, as Daniel Vargas posits, but also an indicator of its political underpinnings.
Regardless of whether Justice Marco Aurélio de Mello’s decision was justified or unreasonable, calculated or unwise, every episode of this plot reveals how judicial activism can be used – to quote David Landau’s abusive constitutionalism – to “erode the democratic order” for the sake of a political strategy, and thus as a sort of abusive judicial activism. This might have temporarily calmed the conflict, but it has also stained the democratic credentials of the Supreme Court. At least in the Brazilian context, judicial activism and judicial independence may not be that harmonious, let alone dependent on each other.
Suggested citation: Juliano Zaiden Benvindo, Abusive Judicial Activism and Judicial Independence in Brazil, Int’l J. Const. L. Blog, Dec. 22, 2016, at: http://www.iconnectblog.com/2016/12/abusive-judicial-activism-and-judicial-independence-in-brazil/
 See Anthony Boadle and Alonso Soto, Brazil’s Indicted Senate Head Removed by Supreme Court, Reuters (Dec. 6, 2016, 12:41pm), http://www.reuters.com/article/us-brazil-politics-renan-idUSKBN13U2RR.
 See David Landau, Abusive Constitutionalism, 47 U. Cal. Davis L. Rev. 189–260 (2013); Ozan O. Varol, Stealth Authoritarianism, 100 Iowa L. Rev. 1673 (2015).
 See Stephan Mothe, Was Brazil’s Impeachment of Dilma Rouseef in Fact a Coup?, OpenCanada (Sep. 8, 2016), https://www.opencanada.org/features/was-brazils-impeachment-dilma-rousseff-fact-coup/; Keneth Rapoza, Why the American Left is Mostly Wrong about Brazil President Dilma’s Impeachment, Forbes (Aug. 26, 2016, 11:51AM), http://www.forbes.com/sites/kenrapoza/2016/08/26/why-brazil-presidents-impeachment-is-more-conspiracy-than-coup/#2e583d9d278b; Wyre Davies, Dilma Roussef’s Downfall: Betrayal yes, but no Coup, BBC (Sep. 4, 2016), http://www.bbc.co.uk/news/world-latin-america-37271465; Dilma Roussef on Ouster: This is a Coup that Will Impact Every Democratic Organization in Brazil, Democracy Now (Sep. 1, 2016), https://www.democracynow.org/2016/9/1/dilma_rousseff_on_ouster_this_is; Amanda Taub, All Impeachments are Political. But Was Brazil’s Something More Sinister?, N.Y. Times (Aug. 31, 2016), http://www.nytimes.com/2016/09/01/world/americas/brazil-impeachment-coup.html?_r=0.
 See Juliano Zaiden Benvindo, Preservationist Constitutional Amendments and the Rise of Antipolitics in Brazil, Int’l J. Const. L. Blog, Oct. 26, 2016, at: http://www.iconnectblog.com/2016/10/preservationist-constitutional-amendments-and-the-rise-of-antipolitics-in-brazil/.
 See André Oliveira, Interferência do Judiciário não é Remédio, mas Parte da Doença, Interview with Daniel Vargas, El País (May 8, 2016, 8:42PM), http://brasil.elpais.com/brasil/2016/05/06/politica/1462570842_615018.html.
 See Brazil Supreme Court Removes Lower House Speaker Cunha, Reuters (May 5, 2016, 2016), http://www.reuters.com/article/us-brazil-politics-idUSKCN0XV1UB; Vinod Sreeharsha, Brazilian Lawmaker Who Led Impeachment of President is Arrested, N.Y. Times (Oct. 9, 2016), http://www.nytimes.com/2016/10/20/world/americas/brazil-eduardo-cunha.html.
 See Thousands Protests Against Corruption in Brazil, Deutsche Welle (Dec. 5, 2016), http://www.dw.com/en/thousands-protest-against-corruption-in-brazil/a-36638148.
 See Márcio Falcão, Precisamos de Correções de Rumo, diz Marco Aurélio, JOTA (Dec. 6, 2016, 8:04PM), http://jota.info/justica/prescisamos-de-correcoes-de-rumo-diz-marco-aurelio-05122016.
 Brazilian Federal Constitution, art. 86, § 1.
 See Daniel Carvalho, Senate Defies Supreme Court and Keeps Calheiros as Its President, Folha de S. Paulo (Dec. 7, 2016, 12:18AM), http://www1.folha.uol.com.br/internacional/en/brazil/2016/12/1839106-senate-defies-supreme-court-and-keeps-calheiros-as-its-president.shtml.
 See Fernando Rodrigues, Entenda como foi o conchavo nos Três Poderes para salvar Renan Calheiros, Poder360 (Dec. 8, 2016), http://www.poder360.com.br/analise/entenda-como-foi-o-conchavo-nos-tres-poderes-para-salvar-renan-calheiros/; Marcos Mortari, Michel Temer costura com STF permanência de Renan Calheiros na presidência do Senado, InfoMoney (Dec. 7, 2016, 10:53AM), http://www.infomoney.com.br/mercados/politica/noticia/5902338/michel-temer-costura-com-stf-permanencia-renan-calheiros-presidencia-senado.
 See Paulo Trevisani and Jeffren T. Lewis, Brazil’s Supreme Court Votes Renan Calheiros can Remain Senante President, The Wall Street Journal (Dec. 7, 2016, 5:57PM), http://www.wsj.com/articles/brazils-supreme-court-votes-renan-calheiros-can-remain-senate-president-1481143438.
 See Landau, supra note 2.