—Diego Werneck Arguelhes, Getulio Vargas Foundation Law School (FGV Direito Rio — Brazil); Information Society Project, Yale Law School (Spring 2017)
[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]
We typically think of courts as victims or targets of populist politics, however we define the latter. Staffed by elites appointed by previous governments, high courts are indeed obvious targets for populist leaders on the rise. To preserve their authority against such threats, courts might adjust their decisions to trends in public opinion, or perhaps “go public” and speak out to the people, adopting public relations strategies to make it harder for politicians to ignore or retaliate against their decisions.[1] In this post, however, I want to sketch an alternative scenario. As general dissatisfaction with representative institutions increases, instead of simply reacting, courts might actively pursue a populist path themselves and claim to speak for the people.
General disillusionment with the political establishment is a key ingredient fueling populist leaders and movements. To some extent, going against the establishment and making claims to (better) represent the people is part of electoral politics.[2] Amidst general disillusionment, however, courts can take the lead, beyond publicly defending judicial authority against political attacks. Adopting the populist vocabulary, they can claim to represent and vindicate current majority sentiment against corrupt establishment politicians.
Consider the case of Brazil. Since the mass protests of 2013, the country has been in a deep political crisis, and support for representative institutions has reached abysmally low levels.[3] From 2014 on, more and more political leaders from different parties, including all living former presidents since democratization and eight members of President Temer’s cabinet, have been investigated or prosecuted within the Operação Lava Jato (“Operation Car Wash”); the Speaker of the House of Representatives, Eduardo Cunha, was even removed from office by the Supreme Court.[4] To this mix, we add an economic crisis (from 2015 on), the controversial impeachment of President Rousseff in late 2016, and a pending lawsuit in which the Superior Electoral Court is being asked to void the 2014 presidential election due to bribes and illegal campaign funds. This political climate, beyond whatever effects it might have had on the substance of judicial decisions, seems to have influenced judicial self-presentation before the public.
Sérgio Moro, a federal trial judge in charge of criminal lawsuits within the Lava Jato framework, has been the only public figure with a consistently high (above 50%) approval rate amidst the crisis.[5] After mass street protests in March 2016 in which his name and face were visible on the shirts of many protesters, Moro issued a public statement thanking people for their support and explaining that Lava Jato was the work of many different authorities. But he also added: “It is important that elected authorities and political parties listen to the voice of the streets and also commit themselves to fighting corruption.”[6] One year later, Moro would release a short video, posted on a Facebook page maintained by his wife, thanking people once again for supporting Lava Jato. Moro has been an early supporter of judges and prosecutors adopting strategies to enlist public opinion to support judicial decisions against white-collar organized crime.[7] However, these recent manifestations – their symbolism, their vocabulary, the focus on the judge as a person and her direct connection to public demands – would seem to go beyond an institutional strategy to buttress judicial authority.
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