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Symposium — Introduction: The Brazilian Supreme Court and the Protection of Democracy in the Age of Populism

[Editor’s Note: I-CONnect is pleased to feature a four-part symposium on the role of the Brazilian Supreme Court and the protection of democracy in the age of populism. The symposium was kindly organized by Professors Conrado Hübner Mendes and Juliano Zaiden Benvindo, who have written today’s introduction to the symposium.]

Conrado Hübner Mendes, University of São Paulo (USP) and Juliano Zaiden Benvindo, University of Brasilia (UnB)

Studies on the crisis of constitutional democracy and the populist threat have mushroomed in the last decade.[1] Such crises are detected through a set of markers, such as the denial of the dignity and legitimacy of political opponents, weak commitment to the rule of law, attacks on civil liberties, the erosion of basic democratic norms, etc.[2] No matter which standard of crisis one embraces, it is hard do deny that Brazilian democracy is now facing its most severe challenge of the last 30 years.

This is not an easy story to reconstruct. In the course of the last five years, the specter of polarized and anti-establishment politics has gradually engulfed the Brazilian public sphere and institutional life. This story comprises the arousal of an almost unprecedented wave of street protests that cut across the political spectrum from June 2013 onwards, the arguably biggest anti-corruption judicial operation in the history of Western democracies (the ongoing CarWash Operation, kicked off in 2014), a highly contested impeachment process against an elected president (Dilma Roussef, who was ousted from office in 2016), and a vicious electoral cycle in 2018, which ended in the election of Jair Bolsonaro. The accumulated body of knowledge of political science, until the very last minute, did not see it coming. And all this coincided with the 30th anniversary of the Brazilian 1988 Constitution, the most ambitious democratizing document in the country’s history and the shared platform for significant social change over these decades.

The 2018 electoral moment also marks the end of the so-called “New Republic” cycle, which started in 1988 and revolved around the two major political parties in the country: PSDB and PT, both fairly attuned with the social-democratic constitutional commitments of 1988. Bolsonaro, a fringe right-wing member of parliament for 30 years, reached the presidency by ticking the full populist package, with the addition of a local grain of salt. It’s all there: the celebration of a glorious past (for him, the military dictatorship from 1964 to 1985); the homogeneous notion of people, which excludes whatever minority or political group that does not support him; the repressive discourse against vulnerable minorities; the reactionary moralist agenda; the individualization of social evils and the advancement of one-shot solutions for various sorts of social afflictions; a law and order-type discourse that reinforces incarceration and stimulates police lethality; the refusal to comply with institutional constraints and to play the game of coalition politics.

As expected, an antagonistic strategy against the judicial system is not absent either. The Brazilian Supreme Court has become a target of a widespread campaign through the same powerful technological devices that helped deciding the presidential election. Such a campaign attempts to damage the Court’s authority and to put pressure on its decisions.  First and foremost, in cases related to the CarWash Operation. The habeas corpus petition that could release former president Lula from prison, for example, has become such an explosive case that even high-ranked officials of the National Armed Forces threatened the Court through public tweets in social media. Second, in cases of fundamental rights that touch building blocks of the conservative mindset. Third, with a record number of lawsuits that were brought to Court in the first six months of Bolsonaro’s government and are challenging its most controversial measures, like the flexibilization of arms control, the creation of a monitoring system against domestic and foreign NGO’s, the emptying of a monitoring body against torture, or the extinction of a number of participatory public policy bodies. The stakes are as high as ever, the Supreme Court’s political capital is as low as ever, and it remains an open question how it will react.

The current Symposium is inspired by this intriguing topic: The Brazilian Supreme Court and the Protection of Democracy in the Age of Populism. We invited prominent scholars, with distinct backgrounds, to provide their brief take on the matter. The set of the three contributions to the Symposium illuminate different aspects of that question.

The first piece – “Under pressure but crucial: the Brazilian Supreme Court under Bolsonaro”, coauthored by Luciana Gross Cunha and Marta de Assis Machado, provides a straightforward picture of the delicate context that the Court faces and of its dubious attitudes with respect to the space it intends to occupy within the separation of powers.

The second piece – “The empirical turn in the Brazilian Supreme Court: getting it right,” written by Debora Diniz, takes issue with the particular judicial challenge of making authoritative decisions in what she called a “post-truth age.” It claims that the Court can attenuate this challenge by adopting a non-dilettantish approach towards empirical evidences provided by scientific research when deciding hard cases.

Third, Diego Werneck Arguelhes’s post “The Supreme Court and the Bolsonaro government: a fragmented court in a conflictive political scenario” examines, in light of the the new context, the most unique feature of the Brazilian Supreme Court’s design: the fragmented character of its decision-making style, which opens various opportunities for an individual justice to work on agenda-setting and to obstruct decision-making.

This Introduction puts forward some further contextual background and raises a couple of additional questions that scholars in comparative politics and constitutional law might want to keep an eye on in the coming years. The Brazilian case, as every other ‘crisis of democracy’ case, has something particular to offer. The next section raises some cautious doubts about whether ‘democratic decay’ is already a proper category to describe Brazil. The following one looks at the emerging forms of judicial populism that might work for or against the government’s populism. We finish by pointing out what we call the “bolsonarist docket” at the Supreme Court, a forum to be observed in the coming months.

1. Democratic decay?

Despite the vocation of bolsonarism for authoritarian politics, it might be too hasty to consider Brazil as a clear-cut case of what Tom Gerald Daly calls “democratic decay”. In his recent paper Populism, Public Law, and Democratic Decay in Brazil: Understanding the Rise of Jair Bolsonaro, Daly argues that the “nature of democratic decay in Brazil” is “sui generis”[3]. His main contention is that, unlike recent experiences like in Hungary, Poland and Venezuela, Brazil seems to “[have] moved from a context of democratic decay to a context of democratic survival”. There are, according to him, some “fundamentals of a healthy democracy,”[4] like a vibrant and robust civil society, an “independent (if highly imperfect) judiciary”, and a “free media”. Although some of these fundamentals are under stress, one cannot yet tell the level of resilience they will have.

The “sui generis” kind of “democratic decay” may also be due to the very functioning of the Brazilian political system, which, in all its imperfections, may prove prone to make a populist’s agenda less easily digestible by Congress. Barry Weingast, in his Designing Constitutional Stability, argued that a crucial premise for constitutional stability lays in the “coordination problem underlying democracy,” that is, “whether citizens have the ability to act in concert against political leaders who transgress constitutional rules.” [5] Such a premise is evidently deeply challenged by the rise of a populist leader who will do whatever it takes to smash any opposition. When populists, empowered by an expressive electoral impulse, face a coordinated opposition against his or her agenda, their success might be neutralized.

Bolsonaro’s government has just completed its first sixth months and its electoral momentum seems to have waned. The high fragmentation of the party system, mixed with the president’s unwillingness to build a coalition or even to get stable support from his own party, which he associates with corrupt politics, is producing a strong obstacle against his government. The Congress’s agenda remains entirely focused on the single most important reform of the government’s economic plan: the pension reform, which requires a constitutional amendment. Due to Bolsonaro’s refusal to enter into negotiations that such a sweeping reform requires and his adamant attitude towards Congress, the Speaker of the House, Rodrigo Maia, has been taking the lead in the process. This is significant not only to this particular reform, but is apparently shaping a whole new manner of Executive-Legislative interaction, juxtaposing an empowered Congress and a weakened Presidency.

In such conditions, Bolsonaro has been trying to govern through decrees and executive measures, but has so far suffered three defeats in Congress, which overruled those measures. Street protests against the government have already started to regain force as well.

The Congress is becoming, thus, as far as one can tell, a non-negligible counter-force against Bolsonaro’s most aggressive initiatives against the constitutional project. The other potential front that might hold the government to account is the justice system, especially the Supreme Court.

2. Governmental populism v. judicial populism?

The Brazilian Supreme Court holds a vast array of constitutional competencies and has been gradually expanding its concrete authority over the last 30 years. The last 5 years, though, have been an extraordinarily burdensome period. The Court has predictably become, in the face of political turmoil, a cornerstone of every single political dispute. And the political disputes of the last 5 years, alongside polarization and anti-corruption frenzy, have become more explosive.

Such a scenario was the focus of Diego Werneck Arguelhes’s piece Judges Speaking for the People: Judicial Populism Beyond Judicial Decisions,which was part of the symposium for Verfassungsblogand I-CONnecton Constitutional Courts and Populism, published in May 2017. Arguelhes observed that there was a growing tendency of the Brazilian Supreme Court to resort to a populist mode as a way to handle the political thicket. He argued that “general distrust of representative institutions might be a threat to judicial authority and the rule of law more broadly. But it can still empower and embolden individual judges who seize the opportunity to present themselves as speaking for the people.”

It is still unclear, though, whether this gradual shift can be interpreted as a technique of judicial survival, deference and collaboration, or whether it can also be an apposite technique of judicial resistance. To be sure, judicial populism can express itself in distinct ways and needs to be conceptualized with greater clarity. In the Brazilian Supreme Court, judicial populism combines at least two different things: a prominent focus on the individual justice rather than on the collegiate institution (which is reinforced by the TV broadcast of hearings and judgment sessions, by the unique amount of monocratic power each has, and by the general tolerance with their intense interaction with the media), and a reasoning style that calls for listening to “social sentiment” as a doctrinal guideline for decision-making. In anti-corruption cases, a major example, this sort of populist appeal usually grounds the flexibilization of constitutional guarantees.

The individualist behavior of the Court’s justices, for sure, did not help to build institutional legitimacy over the years. It harmed the image of impartiality and in cases that receive broad social attention, like the ones on corruption, decisions are perceived as partisan like never before. Structural dysfunctionalities, such as its poor deliberative performance,[6] strongly affect its legitimacy. The incentives for individual rather than collective and collaborative decision-making[7] may now, more than before, expose the political behavior of the Supreme Court. In such a context, it is expected that President Jair Bolsonaro and his acolytes will channel their energies into attacks on the lack of impartiality as a way to portray the Court as an enemy.

The Supreme Court’s populism is judicial populism from the top. But one should also observe judicial populism from the bottom. First instance individual judges also develop and benefit from populist strategies. No judge has ever achieved a comparable heroic status as judge Sérgio Moro, the grand architect of the CarWash Operation. His populist recipe articulates an image of judicial heroism with the virtue and capacity of cleaning up the country from corrupt ‘old politics.’ Moro became the leader of a ‘judiciary with a cause.’ Each step he made had a visible political timing and immediate media coverage.

No case makes this more evident than the series of events that surrounded the process against former president Lula, whose imprisonment prevented him from running in the 2018 election (with the polls indicating he was leading the race). Moro’s later acceptance to become the Minister of Justice of a government that, for better or worse, benefited from his judicial decisions, provides plenty of plausible evidences for those who criticized the politicized character of the whole operation. Moro himself had claimed, months earlier, that he would never agree to become a member of the next government in order not to put into question the integrity of the legal process he coordinated.

A couple of weeks ago, a massive leak of conversations between Moro and the whole team of the CarWash prosecutors, made by the media outlet Intercept, sparked a whole new controversy. The conversations that were already leaked, arguably a small portion of the whole material received by Intercept, show at the very least a high level of coordination with regards to legal strategies, timing and media approach between Moro and the prosecutors. The legal and political effects of the scandal are still to be seen: despite Bolsonaro’s continuing support, Moro has lost the status as super-minister; also, in light of these new revelations, the Supreme Court now faces the prospect of passing new judgments in CarWash cases, starting with Lula’s sentence.

3. The ‘bolsonarist docket’ ahead as a test case

The Brazilian Supreme Court, as expected, received a record number of 34 lawsuits against Bolsonaro’s legal measures in the first six months. The ‘bolsonarist docket’ targets, for example: the decree that liberates a large number of agents to carry guns, budget cuts against public universities, and changes in procedures for recognizing indigenous land rights.

Alongside the bolsonarist docket, the Court was also asked to rule on various appeals related to the “CarWash” probe, which revolve around matters that affect the interpretation of constitutional guarantees of those charged or arrested. In almost all cases, the Court ruled against those appeals, normally accepting the argument that the lower court decisions and prosecutorial investigations complied with the rule of law. In a controversial ruling, it also set the precedent that convictions confirmed by a single appellate court are enough for imprisonment, whereas the Constitution provides, in an unamendable provision, that “no one shall be considered guilty before the issuing of a final and unappealable criminal sentence.”[8] Many read this decision against the literal text of the Constitution as a clear influence of the crusade against corruption.

The bolsonarist docket, combined with the CarWash docket, can be seen as a crucial test-case on whether the Supreme Court’s populism will turn into judicial collaboration, or alternatively into a more defiant posture.

Suggested citation: Conrado Hübner Mendes and Juliano Zaiden Benvindo, I-CONnect Symposium: The Brazilian Supreme Court and the Protection of Democracy in the Age of Populism: Introduction, Int’l J. Const. L. Blog, June 26, 2019, at: http://www.iconnectblog.com/2019/06/i-connect-symposium-the-brazilian-supreme-court-and-the-protection-of-democracy-in-the-age-of-populism-introduction/


[1] See Mark A Graber, Sanford Levinson, and Mark Tushnet (ed.), Constitutional Democracy in Crisis? (Oxford University Press 2018).

[2] See Steven Levitsky and Daniel Ziblatt How Democracies Die, (Crown 2018)

[3] Tom Gerald Daly, ‘Populism, Public Law, and Democratic Decay in Brazil: Understanding the Rise of Jair Bolsonaro’ (2019) International Human Rights Researchers’ Workshop: ‘Democratic Backsliding and Human Rights 1

[4] Ibid., p. 22.

[5] B Barry Weingast, ’Designing Constitutional Stability’ in Roger Congleton and Birgitta Swedenborg (ed.), Democratic Constitutional Design and Public Policy Analysis and Evidence (2014) 343.

[6] Virgílio Afonso da Silva, ‘Deciding without Deliberating’ (2013) 11 International Journal of Constitutional Law 557, 557-84.

[7] See Diego Werneck Arguelhes and Ivar A. Hartmann, ‘Timing Control without Docket Control’ (2017) 5 Journal of Law and Courts 105, 105-40

[8] Brazilian Constitution, Art. 5, LVII.

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Published on June 26, 2019
Author:          Filed under: Analysis
 

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