[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 final entry of the symposium, which was kindly organized by Professors Conrado Hübner Mendes and Juliano Zaiden Benvindo. Their introduction is available here.]
—Diego Werneck Arguelhes, Insper Institute for Education and Research.
Brazilian politics has taken a turn to the far right. The 2018 elections brought to office President Jair Bolsonaro, who, in less than one year, had gone from being a fringe congressman to almost winning the elections in the first round. Bolsonado adopted an anti-establishment and social conservative discourse that marked a shift in the center of gravity in Brazilian politics. Although the Worker’s Party (PT) is still the largest party in Congress, the current legislature is arguably the most right leaning the country had since 1988, when a new constitution was enacted as part of the transition to democracy.
Taking initial steps towards his campaign promises, Bolsonaro has introduced measures to make it easier to own and carry a gun and to dismantle the existing structure of civil society councils within the executive branch. Both measures were adopted by executive decrees, and not by the usual legislative process, and, unsurprisingly, both were immediately challenged before the Supreme Court (Supremo Tribunal Federal, “STF”). The decree extinguishing civil society councils was ruled partially unconstitutional by the STF on formal grounds, and, while Bolsonaro has somewhat backtracked regarding the gun possession decree, it is still possible that the court will rule on the matter in the near future.
In the last few months, the STF has been making important advances in protecting some minorities and vulnerable groups. It has issued important rulings on transgender persons’ rights, and a majority of Justices ruled that the Constitution requires the criminalization of homophobia – a bold display of activism that has been criticized as “completely wrong” by Bolsonaro himself.
In terms of design, the STF is both powerful and independent, and Brazilian politics has become so judicialized that any controversial political issues are bound to trigger constitutional review. Do these episodes suggest that the STF – currently composed of judges entirely appointed by governments to the left of Bolsonaro – will use these powers to act as a check on the government in the near future?
In this post, I will briefly discuss three points that, taken together, caution against assuming that the STF will necessarily be able (or willing) to counter all potentially controversial measures of the Bolsonaro government.
First, the Brazilian Supreme Court is highly fragmented in its decision-making and agenda-setting powers. Individual justices are known to decide and comment on high profile issues, bypassing their colleagues. They can operate (and have often done so) more or less independently from one another in the national political scene. The Court as a whole has been the favorite target of the “ideological” wing of the Bolsonaro camp, mostly due to its activism on certain minority rights and – perhaps most importantly – to its somewhat equivocal, fragile support to the lawsuits connected to “Car Wash” (Lava Jato) corruption scandal. But the STF’s relationship with Bolsonaro himself or his base has not been necessarily conflictive across the board. While all Justices seem to reject his views on minorities, some of them seem sympathetic to the anti-corruption and “tough on crime” agenda, as well as to the broader criticism of the “old ways” of Brazilian establishment politics. In this sense, resistance to specific measures adopted or defended by Bolsonaro can vary within the STF, and the Justices can independently employ their individual powers to either hinder or enable these measures.
Second, in practice if not in theory, the Brazilian Supreme Court has the power to remain completely silent on any given case. Its judges are not constrained by any deadlines, and have an array of mechanisms to simply postpone a ruling indefinitely – arguably the ultimate way of controlling the timing of one’s decisions. Even if the court will be asked to rule on every single relevant measure adopted by Bolsonaro, it can always choose the path of “silence”.
Lastly, the current scenario of conflict between the two political branches can be dangerous for the Court. Although Bolsonaro’s preferences are generally compatible with those held by the current Congress, inter-branch relationship has been tumultuous from the start, and coordination has been hard to achieve even within and between different camps in the Bolsonaro government itself. In Brazilian “Coalition presidentialism”, presidents must be constantly nurturing their congressional support through the supply of pork, cabinet positions and other appointments at the federal level. However, Bolsonaro campaigned against precisely such moves, associating them with “establishment politics” and consistently equating bargaining and sharing power with corruption itself.
While he does occasionally adopt some of the “old” methods of negotiation, Bolsonaro, his three sons with legislative offices, and his party have constantly attacked Congress. Instead of discussing policy, they behave as if they are constantly campaigning against the Worker’s Party or the corrupt establishment more generally. Claiming to be defending Bolsonaro, his clique has attacked key political players in the middle of delicate congressional negotiations. Potential allies become alienated, and the President loses his grip on the reins of the political process.
This scenario of “almost divided” government could, in theory, be good news for the Court. Inter-branch conflict and lack of coordination might make it less likely that politicians will be able to retaliate against judges who step into the political arena, thus expanding the space for judicial intervention. But other factors make this argument potentially misleading in this case. The harder it becomes for Bolsonaro to govern, the more he will be tempted to resort to an anti-establishment discourse. He will not cease to fuel popular dissatisfaction with the other branches. For this purpose, he needs enemies, and may find convenient ones in STF, depending on how the court selects its cases and how its judges are publicly portrayed in the broader “tough on crime”, anti-corruption narrative fueled by Bolsonaro.
The scenario created by the three elements above is complex. The Court has increased its political clout in the last decade mostly through rulings involving (i) minority rights and (ii) corruption charges against politicians. While minority rights had traditionally provided “safe” cases for the Court to flex its muscles, these issues are now central to the “cultural war” waged by a president who will need to divert public attention away from his inability to manage his coalition. For example, as he criticized the STF’s majority position on homophobia, Bolsonaro pointed out that there are no evangelical judges in the court. Such comments might be the initial steps in ideologizing his relationship with the Court as part of a “cultural war”, shaping public discourse around the two STF appointments he will be able to make in 2020 and 2021.
Moreover, criminal law cases against politicians, which the court has used to position itself at the center of national politics since the Mensalão decision in 2013, might have become a liability. The fate of key parts of the Lava Jato operation is hinging on a single vote within the court. Recent leaks of personal communications by Bolsonaro’s Minister of Justice Sérgio Moro – who, as a federal judge had convicted former president Lula – will push the court towards revisiting these issues in the near future, beginning with Lula’s detention. The outcome of these decisions is unpredictable; depending on the political climate, the STF’s majority could easily come either way.
Any decision in Lula’s case, in particular, has enormous potential to be employed by Bolsonaro against the court or some of its individual judges. It is unlikely that the Justices will face these issues – including the decision on when to decide them – without an eye on the political climate. Consider, for example, that the Second Chamber of the STF has just denied a provisional injunction to release Lula, while it postponed (in principle until the beginning of the next judicial term, August) the decision on whether Judge Sergio Moro’s impartiality had been compromised in Lula’s trial.
Beyond the STF, there are also pending investigations and some lawsuits against allies of the Bolsonaro government itself, including some members of his cabinet. In the current political scenario, then, deciding to decide criminal charges against politicians can be a lose-lose situation for the Court. They will anger either the Bolsonaro base or politicians around (or within) the Bolsonaro camp.
The dangers above are multiplied by the Court’s fragmented structure and by the individual judges’ control over the timing of their decisions. Because individual judges, and especially the Chief Justice, hold veto-like powers over the court’s agenda, even a small minority within the STF can try and block the majority from deciding a given issue. Such pervasive individual veto powers had been used by the STF through the 90s and 00s to avoid direct clashes with the government’s economic and fiscal policies. They can now be used to avoid clashes on “cultural” and criminal issues that might have become dangerous for the court, making judical silence a convenient option.
Moreover, individual opinions, public manifestations and decisions by STF judges should provide constant material for right-wing criticism of the court, regardless of the majority views within the institution – and regardless even of what the Court actually decides. STF Justices are intensely public figures in Brazil. Their faces, deeds, and words have become the stuff of Internet memes, fake news, and large-scale messaging on social media. Different judges publicly pursue their own constitutional agendas and public profiles. Clashes of such displays of judicial “entrepreneurship” within the court might lead to (individual) decisions against the government in some cases, and such decisions can be expected to draw immediate criticism and harassment by Bolsonaro and his supporters on social media. It is likely that the STF judges will have to pick their fights, even if and when they are willing to take a stand against specific government measures.
Actual coordination within the STF is possible, but not very likely. The clash of individual agendas and individual powers, combined with the dangers posed by the spread of anti-establishment and conservative discourse, make judicial silence, in principle, as likely as judicial intervention on a range of high profile cases. Moreover, individual judges within the court vary not only in their substantive views, but also in their exposure to, and strategic assesment of, the short-term political scenario. Judicial resistance, if it happens, might take place at the individual level, being therefore more contingent. We should account for these factors in assessing the STF’s capacity and willingness, as an institution, to check future controversial measures adopted by Bolsonaro.
Suggested citation: Diego Werneck Arguelhes, Symposium
– The Brazilian Supreme Court and the Protection of Democracy in the Age of Populism:
The Supreme Court and the Bolsonaro Government: A Fragmented Court in a Conflictive
Political Scenario, Int’l J.
Const. L. Blog, June 29, 2019, at: http://www.iconnectblog.com/2019/06/symposium-the-brazilian-supreme-court-and-the-protection-of-democracy-in-the-age-of-populism-the-supreme-court-and-the-bolsonaro-government-a-fragmented-court-in-a-conflictive-political-scenario/
 See Diego Werneck Arguelhes and Leandro Molhano Ribeiro, “ ‘The Court, it is I?’ Individual judicial powers in the Brazilian Supreme Court and their implications for constitutional theory”, Global Constitutionalism, v.7, n.2, 2018.
 See Diego Werneck Arguelhes and Ivar A. Hartmann, “Timing control without docket control: how individual Justices shape the Brazilian Supreme Court’s agenda”, Journal of Law and Courts, v.5, n.1, 2017.
 See, e.g., Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian cases. Cambridge University Press, 2003.