Blog of the International Journal of Constitutional Law

Constitutional Dialogue or Crisis between Congress and the Supreme Court: A New Equilibrium in Brazil’s Coalition Presidentialism?

Emilio Peluso Neder Meyer, Associate Professor at the Federal University of Minas Gerais, and Juliano Zaiden Benvindo, Associate Professor at the University of Brasília

A fascinating discussion is currently underway in Brazil, whose Supreme Court is known as one of the most stable and interventionist in political affairs in Latin America. It has also been recognized for enduring relatively few attacks historically, both on the individual level (such as impeachments or forced resignations) and on an institutional level (like packing or dissolution). This situation has evolved in recent years, particularly during the tenure of former President Jair Bolsonaro, when the Supreme Court exerted an important role in curbing some of his autocratic plans, but the assessment remains accurate. Recent events have sparked concerns about whether this stability, independence, and strength in interbranch conflicts are in jeopardy. A backlash in the National Congress has led to a set of proposals for constitutional amendments that, at first glance, point towards a weakening of the Court’s powers, triggering thereby a fierce reaction by the Court’s Justices.

What is striking in the Brazilian case is that this move is taking place under Lula da Silva’s presidency, a normal and democratic government who succeeded Jair Bolsonaro, a would-be autocrat who continuously attacked the Court, but without being able to pass any constitutional amendment that could affect its functioning and independence. There are some important legacies of such times, though: Congress is mostly composed of right and center-right politicians, many of whom could be identified as Bolsonaristas. The recent movement is basically a congressional initiative: the government has not really pushed for such changes, but it has not made it more difficult to pass, either, despite the several tools the executive holds to discipline its coalition. Nevertheless, what comes out of such developments is not really the typical clash between anti-democrats and democrats, as seen elsewhere. The nuances are various, the stakes are high, and even the potential for good outcomes from bad causes is not negligible. The traditional narrative is that the Federal Senate’s recent push reflects a complex mix of factors—judicialization of politics and the Court’s rulings on contentious matters such as individual marijuana use and abortion. Still, it may be rather simply an accommodation of Brazil’s coalition presidentialism, now reaching the Supreme Court for a new dynamic equilibrium among the powers. This shift might not necessarily be a negative development. How could this be the case?

The Congressional Agenda

On 22 November 2023, the Federal Senate approved a proposal for a constitutional amendment limiting individual or monocratic rulings of Justices of the Supreme Court (PEC 8/2021). By a majority of 52 votes against 18, the Senate aimed at changing the 1988 Constitution in its Article 97 to restrict the power of individual Justices of the Supreme Court. The provisions yet to be approved in the Chamber of Deputies bar individual injunctions to suspend or interpret legislative acts or acts of the President of the Republic or the Speakers of the congressional houses. Only in extreme urgency during recess times can the Chief Justice decide alone, with the need of a confirmation vote by the full bench in thirty days. Injunctions by the plenary court can happen, but the case’s merits must be decided within six months. The same restrictions are to be applied to decisions involving bills in the National Congress, acts that affect public policies, and those that increase budgetary expenditures. The restrictions also affect the constitutional review exercised by state courts.

After the approval in two rounds in the Federal Senate, there is not much light on what can take place in the Chamber of Deputies. The end of the annual legislative session in Brazil is approaching and there seems to be less disposition of the lower house’s Speaker, Deputy Arthur Lira, to dive into this intricate problem. As Arthur Lira has regularly used his authority for setting the agenda in the lower house as a bargaining chip with the government, it is unsurprising that he might now perceive himself as empowered by such a PEC to negotiate certain political advantages or concessions with the Supreme Court.

Two other proposed constitutional amendments have not yet been approved in either of the houses but appear to have garnered momentum following the passage of PEC 8/2021 in the Senate. The first is PEC 51/2023, which seeks to establish term limits for Supreme Court Justices, following a design trend in comparative constitutional law. According to Article 101 of the 1988 Constitution, Justices must have, at least, 35 years old, and a maximum of 70 years old, serving for life until general retirement in the Brazilian public service – that is, 75 years old. The expectancy that a Justice will serve, for example, for 25 years is one of the pivotal factors the president must consider when appointing them to the court. Discussing the implementation of changes regarding term limits is not inherently against the 1988 Constitution. Once more, the issue lies in their emergence in specific circumstances that appear to be reacting to the Court’s role during the recent threat of authoritarianism. The specific alterations aimed at by PEC 51/2023 might spark a broader and more extended debate.

Particularly concerning is, however, PEC 50/2023, which introduces the potential for a legislative act, upon approval by 3/5 of both houses of Congress, initiated by 1/3 of the members of the Chamber of Deputies and the Federal Senate, to suspend a ruling by the Supreme Court perceived to violate “constitutional limits”. The rationale behind this proposal primarily aligns with a majoritarian concept of democracy, suggesting a mechanism against decisions contradicting the broader majority or the will of millions of Brazilian citizens. Despite the fact that the 2023-26 legislature is the most conservative and right-leaning since the transition to democracy in 1985, the severity of this constitutional amendment proposal renders its approval highly improbable in both houses.

To halt the Federal Supreme Court rulings is not something new in Brazilian constitutional history. The 1937 Constitution, Article 95, sole paragraph, designed by one of the most outstanding critics of judicial review in Brazil, Francisco Campos, had a provision that allowed the President to submit an act once struck down by courts again to the National Parliament, for approval in favor of the people’s welfare or national interest. As the parliament was suspended, Getúlio Vargas, then president, halted at least two rulings of unconstitutionality taken by the Federal Supreme Court. In 2011, PEC 33/2011 also aimed at creating another species of override, at that time subjecting the final decision to popular referenda. The proposal did not prevail.

Justices, Not the Court

There is indeed a long distortion in the Supreme Court’s case law indicating several examples of cases in which the volunteering approach of each Justice resulted in conflicting rulings. Between 1988 and 2018, more than 70% of the total rulings were taken individually. The Chief Justices incorporated powers that, with a fragile legal basis, allowed them to revoke their colleagues’ decisions. Such practice started in 2018 when then Chief Justice Luiz Fux suspended the authorization granted by his colleague Justice Ricardo Lewandowski to allow a newspaper to interview Lula when he was in jail.

Several other conflicts arose, but nothing could be compared to the so-called fake news inquiry. In 2019, then Chief Justice Dias Toffoli started a procedure to investigate digital attacks on the Court and its Justices. He designated as rapporteur of the inquiry Justice Alexandre de Moraes. The Supreme Court was provoked to discuss the legitimacy of the inquiry and decided that it was constitutional. The problem is that, with the accelerating pace of constitutional erosion, the fake news inquiry started to include a wide range of acts, all protected by secrecy. Even the report of a legislative committee on the coup attempt of 8 January 2023 was incorporated into the inquiry. Although some rulings took place under different procedures, Justice Alexandre de Moraes gained momentum when he was constantly in newspapers as the one responsible for sole decisions that, for instance, set aside the Governor of the Federal District that administrates Brasília in the day after the failed coup. Several of his individual rulings were confirmed by the full bench but without a clear procedure on how and when this should happen.

Former Chief Justice Rosa Weber, however, took important steps to control both individual rulings as the power to request procedures for longer analysis (the so-called pedido de vista). If any Justice wants to issue an injunction that can affect fundamental rights or protect the subject of the lawsuit, he or she must immediately submit the ruling to the Court’s full bench. If any Justice requests a procedure for deeper investigation, he or she must return the lawsuit within ninety days. The modifications occurred at the end of 2022.

The Rationale

However, what possibly lies beneath such legislative movements is more structural and is intimately related to the functioning of Brazil’s coalition presidentialism, now reshaped by new junctures that have greatly impacted its functioning. Since President Jair Bolsonaro’s administration (and also during the-tenure of prior President Michel Temer), there has been a growing perception that the Brazilian coalition presidential system has undergone changes favoring the National Congress. This transformation is primarily associated with the augmentation of budgetary powers granted to legislators, which Bolsonaro utilized as a strategy for co-opting Congress. The Supreme Court curtailed these powers by nullifying the general confidentiality surrounding legislative amendments that legislators could introduce to the federal budget bill. The ruling, however, did not put an end to the way by which the executive branch reaches success in the National Congress: the president still needs to allocate funds for legislators’ projects that have an impact on their constituencies. President Lula, for instance, could only see his fiscal and tax reforms move forward when both liberated the payment of legislative amendments, in a typical maneuver of pork-barreling and incorporated members of the center-right political parties dependent on this kind of cronyism (the so-called centrão, big center) into his government.

The National Congress might be reacting to Supreme Court dysfunctionalities, seeking further control over its procedures, as seen at the end of 2022. This could be a reasonable explanation. Additionally, political opportunism plays a role, such as in the case of Federal Senate President Rodrigo Pacheco. Pacheco gained prominence as head of the senate during the final two years of Bolsonaro’s administration. He was always in the center politics: he refused to create a legislative committee to investigate the pandemic politics only to be curbed by a Supreme Court ruling; at the peak of Bolsonaro’s criticism against the electronic ballots, he defended the system as also the accountability work of the Electoral Superior Court. While his term ends in early 2025, he seems keen on establishing himself as a significant political figure influencing the next election of the President of the Federal Senate. Appeasing the opposition, which mostly supports restricting the Supreme Court’s rulings, appears to be a tactical move. However, the Senate’s timing amidst an ongoing democratic crisis seems inappropriate, despite the relevance of altering the justices’ concentrated power within the court.

The Supreme Court and the increasing threat it has suffered indicate, to some extent, an attempt to exert control over the boundaries of politics. However, they may also be an expression of a political strategy where the incentives for opposition to the logic of the separation of powers have been radicalized as politics has become more polarized and confrontational. It is a symptom of our time, when courts have their powers magnified and when conversations and negotiations across the political line seem growingly a matter of the past. But aggrandizement in excess is a recipe for instability, more even still when courts challenge their traditional symbiosis with Congress. It could manage to work side by side with the political spectrum while the system of government could function rather efficiently, and politicians could talk and shake hands. However, Brazil’s coalition presidentialism suffered significant setbacks due to increased incentives for co-optation, particularly amplified during Bolsonaro’s tenure. Additionally, the Court’s authority to arbitrate conflicts through legal means has noticeably waned. An indication of its increasing vulnerability is its escalating reliance on purely political strategies veiled behind legal arguments to resolve conflicts. Its authority – the Constitution – has become less of a powerful resource for its decision-making and behavior.

Coalition Presidentialism Being Reshaped

The dynamics between the executive and legislative branches underwent significant changes, becoming less stable. It did not take long for the Court to be impaired by such new political arrangements. Those series of proposals for constitutional amendments targeting the expanded powers of the Supreme Court are a demand for the Court’s accommodation to such a new power-sharing configuration. While some proposals, such as those limiting individual powers in favor of collective deliberations or establishing term limits for justices, might seem reasonable, others, such as those potentially allowing the override of the Court’s decisions, visibly surpass the boundaries of the separation of powers. This constitutes an unamendable clause in Brazil and would consequently be subject to constitutional review.

This clash of powers has the potential to instigate a new equilibrium that could, paradoxically, benefit Brazil’s democracy, depending on the extent of these changes. Furthermore, what is intriguing is that despite some of these proposals being perceived as assaults against the Court, forming part of Bolsonaro’s legacy, certain changes align more with the standards of well-structured constitutional courts when viewed from a comparative perspective. Could this be the opening of a Pandora’s Box, leading to a barrage of attacks against the Court – as fiercely argued by Justice Gilmar Mendes during a recent Court session? Or might it be an adjustment that repairs some of the long-standing dysfunctionalities of the Court? This marks just the beginning of a captivating discussion, the answers to which are yet to unfold.

Suggested citation: Emilio Peluso Neder Meyer and Juliano Zaiden Benvindo, Constitutional Dialogue or Crisis between Congress and the Supreme Court: A New Equilibrium in Brazil’s Coalition Presidentialism? Int’l J. Const. L. Blog, Dec. 13, 2023, at


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