[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. This is the third entry of the symposium, which was kindly organized by Professors Conrado Hübner Mendes and Juliano Zaiden Benvindo. Their introduction is available here.]
—Debora Diniz, University of Brasilia
I would describe Brazil as an ongoing experiment in the effects of the post-truth wave on public institutions and spaces. If post-truth is a global phenomenon, with president Mr. Donald Trump as one of its leading voices, Latin America is a particularly fertile region for observing the effects of the phenomenon on politics due to the weakness of the region’s democratic institutions. The election of Mr. Jair Bolsonaro as the president of Brazil is one of the most recent milestones of the post-truth wave, which is characterized by the persecution of academics and science, the distrust of journalists, and the dissemination of fake news via social media channels.
Mr. Bolsonaro has not changed the composition of the Brazilian Supreme Court, yet. During his tenure, it is expected that he will have the opportunity to nominate at least two new Justices to the Court, which could significantly shift the power balance on sensitive issues, particularly those involving the rights of minority groups. Recently, Mr. Bolsonaro announced his wish to have an “evangelical Justice” as a potential candidate, even though the current Minister of Justice, Sergio Moro, the former judge who sentenced former president Mr. Lula to jail, had been considered the top candidate. Bolsonaro’s comments provoked a strong reaction among the legal community about the meaning of a secular state.
Given the recent radical change in the political scenario, the Brazilian Supreme Court now has a particularly crucial role in protecting fundamental rights for women, LGBTQI, and racial minorities. However, to honor its mandate of protecting the Constitution, the Court has to strengthen its capacity to resist the post-truth mindset that dominates politics in Brazil. I would argue that there is a particular entry point that can facilitate such a role for the Court: the “empirical turn” of legal studies. The “empirical turn” has started at the legal schools with a demand for more rigor in the use of science in legal argumentation and is slowly migrating to the everyday legal work in Brazil. As a professor of methodology to Law students, I have been following a path in changing the legal mindset in country.
The empirical turn represents also a stark contrast to the assumptions of the post-truth wave: it demands a clear comprehension and use of scientific data in legal argumentation, a commitment to research and a balanced use of academic literature to support a legal argument. The empirical turn is the assumption that a fair decision is not just based on jurisprudence or legal interpretations, but also on the findings of neighboring empirical fields, such as sociology, epidemiology, or economics.
To respect the empirical turn is not a straightforward task for the Brazilian Supreme Court, where the Justices are sometimes at liberty to create their own “domestic statistics” or cite “gray literature” as references in their rulings. Despite the personal honor of having been directly quoted by the Court, I have concerns about the sources used by the Justices. I can give an example. I was deeply involved with the case leading up to the 2008 decision about stem cell research in Brazil—I was invited to speak at the public hearing and worked with a large team of scientists to coordinate presentations to the Court. My academic work on the issue was published in a peer-reviewed journal in public health and I personally distributed copies to the Justice’s offices. Yet, the day of the ruling, the writing cited by a Justice was an opinion column about the case that I had published in a national newspaper and which cited no scientific data and had no academic validation.
The empirical turn demands more than ensuring that there are diverse academic credentials on the Justice’s team to help them understand and use proper academic literature and data. There must be an ethical commitment to protect the Court against the post-truth wave dominating the country under Bolsonaro’s administration. The Court’s decision on homeschooling is a good example of how empirical arguments were at the core of the controversy and yet, unfortunately, were only used in a superficial manner.
The case was about the right of families to homeschool their children. The Court’s decision was in favor of homeschooling—9 to 2. One of the votes in favor of homeschooling was from Justice Luis Roberto Barroso, a valued voice in the defense of human rights in Brazil and well-known for his commitment to using science in his opinions. My brief analysis of his opinion is exactly for that reason—his is a leading thinker on the Court and also considered a Justice who uses empirical sources in his writings.
Barroso’s vote has no bibliographic references, even though it refers to “proper scientific explanation” or “according to relevant empirical research that I have had reviewed to prepare my opinion”. The opinion opens with statistics about homeschooling in the USA and then cites 3,200 as the number of students in Brazil who are being homeschooled. The source of that number, as well as the source for the international comparative analysis about countries where homeschooling is authorized or not, are the same: a report presented by an amicus curiae— the Brazilian Association for Defense of Homeschooling. However, the report does not present reliable sources for the estimates of students in homeschooling in Brazil—and the reason is simple: that data does not exist. The report states that a “qualitative and quantitative internet survey was conducted” about homeschooling, with no description of the sample or instruments applied.
Given the populist government, the Court has a heightened duty to avoid any misuse of science, as it can change the reasonableness of a constitutional demand. An example is when Bolsonaro’s government seeks to prohibit sexual education in public schools, claiming that access to information about sexuality increases the risk of adolescent pregnancy. Brazil has one of the highest rates of adolescent pregnancy and illegal abortion in Latin America, and there is no study proving that comprehensive sexual education increases unsafe sexual activity among adolescents; quite the opposite.
In a serious empirical turn by the Court, the most challenging aspect might be understanding how to use complex sociological evidence. For example, in Justice Barroso’s opinion, he considered that the main argument in support of homeschooling was that families should have the right to protect their kids if they live in violent communities: to decide to educate children at home is to decide to try to protect them from the violence. Although that argument may sound reasonable in the abstract, it is not consistent with the realities of Brazilian society. The most violent communities are in underserved areas where families—primarily women—are outside the home, earning the household income, and thus need their children to be at school.
Fortunately, the misuse of the empirical evidence in the homeschooling case did not ultimately change the Court’s understanding of how to fulfil the right to education in Brazil. However, there have been other cases where reliable science was crucial to the Court’s final ruling. One example is the anencephaly case, for which empirical evidence was a driving force in ensuring the discussion remained on the track of reasonableness. Justice Barroso was, at that time, the lawyer for the case and I worked with him on the other side of the judicial game: seeking to guarantee that science was at the core of the petition and the Court’s opinions.
The case was filed in 2004, a moment when fake news was not yet guiding the political debates. However, as usual, moral and religious biases dominated public understandings about the case, especially because of its connection with the abortion question. The petition raised substantial issues: on one side, it presented evidence rooted in medical sciences (an anencephalic fetus is a stillborn in most cases); on the other side, it presented a provocative moral question for religious communities. The public discussion was diverse—from the role of the Supreme Court as an active legislator to the metaphysical question of when life begins.
The justice-rapporteur for the case decided to convene the first public hearings in the history of the Supreme Court: a group of 25 representatives, including 8 scientific representatives, were nominated to present their arguments and data. Religious communities and civil society groups spoke on behalf of the moral diversity of Brazilian society. Until that case, the Court had never used public hearings and rarely used amicus curiae to address sensitive issues—since that time, however, the Court has convened 25 hearings, including on issues such as the right to health and religious education in public schools. Most of the cases were related to human rights questions. One of the most recent cases is the one arguing for the decriminalization of abortion during the first 12 weeks of pregnancy, which has received 47 submissions by amicus curiae. The public hearing happened in 2018, with 52 speakers and massive participation of academic communities.
The Court took eight years to rule on the anencephaly case, and the final decision was heavily based on the science shared at the public hearings. My point here is that the Court can restore its path—the Brazilian Supreme Court has previous experience with using the best arguments and evidence to deal with sensitive issues, even before Bolsonaro’s government and the post-truth wave that now dominates the country. I am not naïvely supporting the idea that there is a final or absolute truth from science or that there is no fake science. On the contrary: the recent public hearings for the abortion case opened spaces for arguments and evidence not recognized as reliable science. If the empirical turn is to be respected and get traction, the Court has to become more methodologically rigorous and consistent. That could be a powerful resource to protect the institution against the populist wave that discredits public reason as a fundamental element of democracy.
Suggested citation: Debora Diniz, Symposium – The Brazilian Supreme Court and the Protection of Democracy in the Age of Populism: The Empirical Turn in the Brazilian Supreme Court: Getting it Right, Int’l J. Const. L. Blog, June 28, 2019, at: http://www.iconnectblog.com/2019/06/symposium-the-brazilian-supreme-court-and-the-protection-of-democracy-in-the-age-of-populism-the-empirical-turn-in-the-brazilian-supreme-court/