[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 second entry of the symposium, which was kindly organized by Professors Conrado Hübner Mendes and Juliano Zaiden Benvindo. Their introduction is available here.]
The Brazilian Supreme Court is characterized by high autonomy and broad authority, which renders it a central policy player. The Brazilian Constitution, similar to that of other Latin American countries, has a long list of economic and social rights, combined with broad access to justice opened to individual and collective actors. As a result, Brazilian courts, and especially the Brazilian Supreme Court, have a crucial role in redistributive politics, besides its more ordinary tasks.
It is possible to say that the Brazilian Supreme Court has gradually been occupying an expansive role in national politics since the early 1990’s, when it decided, for example, to declare the unconstitutionality of a constitutional amendment approved by Congress (ADI 926-5). In the following years, it built an impressive record in adjudicating important political issues and pushed the term “judicial activism” to become a cliché of academic and political analysis. For example, it recognized homosexual civil unions (ADI 4277 e ADPF 132/2011), allowed stem cell research (ADI 3510/2008), broadened the circumstances for legal abortion (ADPF 54) and defined the rules of electoral campaign financing (ADI 4650/2015). It is not a coincidence that the power of the Brazilian Supreme Court has been named as “supremocracy.”
It remains an open question to know how this powerful political actor will react at a moment in which Brazilian democracy and constitution are endangered due to the actions of the new elected president. Our argument here is that in a scenario of deep economic crisis and facing a government that has not shown itself keen to the functioning of democratic institutions, the role of the Supreme Court in guaranteeing fundamental rights and ensuring the autonomous functioning of institutions is essential for the Brazilian society to remain on a path of development of the democratic rule of law. The Brazilian Supreme Court has the autonomy and the authority to do that.
Brazil’s new President, Mr. Jair Messias Bolsonaro, has given ample signs of contempt towards democratic values. During the electoral campaign, he announced unhesitatingly that he would not accept the result of the elections if he did not win. His speeches combined tones of racism, misogyny, and homophobia with the defense of guns, death penalty, torture and extrajudicial killings by state agents, in opportunistic exploitation of people’s dissatisfaction with public security issues and economic crisis.
The president shows arrogance towards the role and functioning of the political institutions in a democracy and the importance of establishing a dialogue between different decision-making bodies in order to achieve governability. In late May, in a call for national protests supporting the government, one could read demands to shut down the Congress and the Supreme Court.
Bolsonaro’s election is rooted in a long political and social process. The protests of June 2013 can be seen as a watershed. The massive mobilization, initially multi-ideological and nonpartisan, catalyzed an anti-corruption and anti-PT social mobilization which culminated in the impeachment of Dilma Rousseff in 2016. A general feeling of disdain towards the political system was also fueled by the highly publicized and moralized criminal prosecution of corruption schemes by the “Car-Wash Operation,” which implicated high-level state agents and federal political authorities. In a parallel process, the election of Bolsonaro was also linked to the growth of conservative movements in Brazilian civil society, the importance of evangelical churches as political actors that substantially supported him, and the serious economic crisis Brazil has been going through since 2014.
In a scenario of deep political, economic and cultural crisis, the election of a candidate that speaks against “everything that it is out there” (referring to a supposed “establishment”) is not new in world political history. Yet, as a young democracy, building the rule of law in Brazil became a slippery path with a government that incites intolerance and violence, threatens activists, attacks universities and intellectuals, loathes diversity and names those who don’t agree with him as “enemies of the nation.”
Against this horizon, the Constitution promulgated in 1988, which provides for the political institutions of a democratic state and the protection of individual civil rights, as well as constitutionalizing social rights, provides the ultimate grounding for the opposition or even civil society resistance.
In the meantime, Brazilian constitutional democracy is undermined by stealth. Brazil is known for a strong presidential regime. The presidential power to initiate the legislative process has been used in the past to build important public policies in the scope of implementing rights guaranteed by the Constitution. But it also means that there is significant discretionary space for a president to destroy or interrupt those policies. Budget cuts, for example, are the strategies taken against public education. All participatory councils of the federal government were closed overnight. The extent of the damage that has been made or can be made within a mandate, and the subtle means to dismantle a constitutional order – Bolsonaro’s modus operandi of what has been called “autocratic legalism” – is still to be observed.
In the first 120 days, Bolsonaro has already issued 157 presidential decrees, from which 6 are being contested in the Supreme Court for abuse of power and violation of the Constitution.
The Brazilian Supreme Court’s capacity of (and legitimacy for) mediating central conflicts in a highly unequal and politically polarized society is being tested. But at the same time, it has never been so important as a political actor. It is exactly in a moment like this, characterized by a gradual “democratic decline,” that the Court has a crucial role in defending due legal process standards and access to justice in a fair and impartial way – the functions that legitimize the very existence of constitutional courts in democracies.
There are few studies on the performance of constitutional courts in populist regimes or in times of democratic recession, or even democratic erosion through electing leaders who attack the democratic rules. So far, it is difficult to foresee what will come. We can only recall the most recent moves.
The role played by the Court during the Car-Wash Operation had important institutional consequences. Although the Car-Wash Operation had undeniable importance in uncovering covert relations between private enterprises and the political-electoral competition in the country, it had dubious results regarding procedural guarantees and legal certainty – a propos, recent conversation published by “The Intercept” between judge Sergio Moro and the public prosecutor Deltan Dallagnol point to illegal acts in the conduction of the judicial prosecutions.
In adjudicating on the Operations various facets, the Supreme Court displayed an inconsistent position, sometimes aligning itself with the punitive turn against corruption from the lower instances, and sometimes exerting the role of limiting State power to secure individual rights. It also exposed the Court, showing strong divisions between Justices, the lack of coherence of its rulings and the vulnerability of its judicial precedents. During an important decision regarding the imprisonment of former President Lula that eventually barred him from contesting the 2018 presidential election, one of the Justices recognized that the Court was passing through “strange times” (HC 146748 MC, Min. Marco Aurélio).
Regarding freedom of speech, a touchstone in democratic regimes, the position of the Court has so far been hesitant. A landmark ruling voted by the full bench (ADPF 548) safeguarded the free manifestation of ideas in the universities. This was a precautionary measure that limited decisions issued by electoral judges authorizing search and seizures in federal universities and faculty associations, and rules prohibiting classes that discussed elections and meetings and assemblies of “political nature” during the electoral period. But in a different vein, the President of the Court, Justice Dias Toffoli, last March decided to start ex officio a criminal investigation against journalists, alleging the release of fake news involving members of the Court. The legality of the measure and its accordance with the free speech clause has been questioned even by the other justices of the Court.
On the other hand, aware of the importance of the Brazilian Supreme Court as an actor able to check his actions, Bolsonaro evokes the separation of power in order to criticize activist justices, complains about the absence of an evangelical Justice on the bench and is anxiously waiting for the retirement of two liberal justices. He has already announced that his number one nominee will be Sergio Moro who is today the Minister of Justice of the government.
In times when it is unclear that the country will be governed according to democratic rules and complying with fundamental human rights, the Supreme Court will be called to adjudicate central political conflicts and reinforce constitutional commitments. There’s no lack of legal tools to allow it to do that. What is still unclear is which role the Court will assign to itself as a political actor in defense of democracy and of the fundamental rights of every person living in its territory. Contrary to what Justice Dias Toffoli worryingly declared two months after the most polarized and uneasy electoral process of the Brazilian new republic, it is not time for the Brazilian Supreme Court to leave the scene.
citation: Luciana Gross Cunha and Marta R. de Assis Machado, Symposium – The Brazilian Supreme Court and
the Protection of Democracy in the Age of Populism: Under Pressure but Crucial:
The Brazilian Supreme Court under Bolsonaro, Int’l J. Const. L. Blog, June 27, 2019, at: http://www.iconnectblog.com/2019/06/symposium-the-brazilian-supreme-court-and-the-protection-of-democracy-in-the-age-of-populism-under-pressure-but-crucial-the-brazilian-supreme-court-under-bolsonaro/
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