—Miguel Gualano de Godoy, Professor of Constitutional Law at the Federal University of Paraná (UFPR) School of Law, currently affiliated with the University of Brasília (UnB) School of Law.[1]
The Brazilian Supreme Court has become a central arena for resolving conflicts that politics no longer processes. This year, however, that centrality is even more pronounced. The Brazilian Supreme Court (STF) has become a recurring topic in political discourse, electoral debates, and institutional controversies. For an international audience, it is important to understand that STF combines the roles of a constitutional court and the final appellate court of the judicial system, operating in a political system marked by fragmentation, presidentialism, and recurrent institutional crises.
Over the past decade, the STF has increasingly functioned as a central arena for processing high-stakes political conflicts. Many of these conflicts were not originally designed to be settled by courts under Brazil’s 1988 Constitution, but migrated there as political institutions lost their capacity to deliberate and decide. The result is a Court that now performs functions that go well beyond traditional adjudication.
My starting point is not normative in the classic sense. The issue is not simply whether the STF “oversteps” or “fulfills” its institutional role. The approach I propose is structural. The key question is different: what type of political crisis explains how the STF came to perform such broad, visible, and contested functions? And, from there, what effects has this transformation produced for Brazilian democracy?
STF: Cause, Not Symptom
A crucial key to understanding the evolution of the STF is to abandon voluntarist explanations. The Court did not become central merely because its justices wished it to be, nor because the 1988 Brazilian Constitution abstractly “authorized” it. The STF became central because Brazilian politics stopped deciding.
When ordinary channels of representation, deliberation, and compromise degrade, conflict does not disappear—it is displaced. In Brazil, this displacement has been massive and continuous toward the Judiciary, and especially toward the STF. The Court has come to function as a forum of last resort for disputes that the political system can no longer resolve on its own. This displacement can be observed in several recent decisions. During the Covid-19 pandemic, the STF intervened to define the distribution of public health powers among federal entities (ADI 6341; ADPF 672), effectively filling the gap left by absent political coordination. In the “fake news” inquiry (Inq. 4781), the Court assumed investigative and protective roles amid institutional paralysis. In ADPF 347, STF declared an “unconstitutional state of affairs” in the prison system, stepping into long-standing policy failure. More recently, it settled the highly politicized dispute over indigenous land demarcation (RE 1017365) and intervened in the so-called “secret budget” controversy (ADPF 850), addressing distortions produced by the political branches themselves.
As the STF has moved into the institutional vacuum created by political paralysis, it has not only decided more disputes but also begun to function as a venue for negotiated solutions to conflicts that political institutions can no longer process. This transformation is structural: once the Court becomes the central arena of last resort, it faces growing pressure to perform roles typical of political bodies, such as brokerage, accommodation, and conflict management, rather than strictly constitutional adjudication. The creation in 2020 of an internal body devoted to conciliation, established by an administrative act of the Court’s presidency, reflects this shift. Conciliation here is not merely a procedural innovation, but a symptom of STF’s relocation from guardian of constitutional limits to manager of political deadlock, filling a space left vacant by the representative branches.
The litigation over Indigenous land demarcation (RE 1017365) illustrates this dynamic. Instead of resolving the constitutional question, the Court promoted a conciliation process aimed at negotiating the practical contours of constitutionally protected rights in a context marked by deep political division and structural asymmetries. In doing so, STF’s centrality transformed it into a forum where constitutional commitments themselves appeared open to transactional adjustment. The institutional signal is troubling: when political conflict migrates to the Court, even constitutional adjudication risks being replaced by negotiated governance, blurring the distinction between constitutional limits and political compromise. This shift carries deeper constitutional implications. By transforming adjudication into a space for negotiated settlements, the Court risks abandoning its countermajoritarian function and its role as a guarantor of minority rights. In cases such as Indigenous land demarcation, where historically marginalized communities expressly reject the negotiation of constitutionally recognized rights, the very premise of conciliation becomes normatively problematic. Rights designed as constitutional safeguards against majoritarian encroachment are reframed as variables in institutional bargaining processes dominated by actors with vastly unequal political and economic power. Rather than correcting representational deficits, this model may reproduce them within the judicial arena itself. The result is a subtle but significant redefinition of the Court’s role: from enforcing constitutional limits against political pressures to facilitating intermediate arrangements that reflect those same pressures. In this configuration, constitutional adjudication ceases to operate as a shield for vulnerable groups and begins to resemble a forum for managed compromise, where the language of dialogue obscures the asymmetries that the Constitution was meant to restrain.
This helps explain why today the Brazilian Supreme Court intervenes in issues as diverse as electoral rules, criminal policy, human rights, institutional design, federalism and federal disputes, and, more recently, governability crises under successive administrations— Presidents Michel Temer, Jair Bolsonaro, and now Lula da Silva. Not because STF is omniscient, but because it has become the last available forum.
The Impeachment of President Dilma Rousseff and the Car Wash Operation: Two Moments, one Structural Fragility
The impeachment of President Dilma Rousseff in 2016 and the Car Wash Operation (2014–2021/2022) are often treated as distinct episodes in Brazil. I see them as two manifestations of the same structural problem: the difficulty of Brazilian democracy in processing high-intensity conflicts within politics.
During Dilma Rousseff’s impeachment, the Brazilian Supreme Court opted for a limited, predominantly procedural intervention, grounded in a previous precedent: the impeachment of President Fernando Collor (1992). In 2016, the STF had the opportunity to revisit and refine its understanding of impeachment. Justice Edson Fachin, now the Chief-Justice of the Brazilian Supreme Court, had just joined the Court and proposed understanding impeachment as a juridical-political process: juridical because it requires a legally defined offense; political, because prosecution and judgment are carried out by Congress.
Justice Fachin’s position, however, did not prevail. STF adopted a stance of self-restraint and reinforcement of the Collor precedent, led primarily by Justice Luís Roberto Barroso. This choice was criticized from multiple angles, as omission, complicity, or excessive formalism. Yet this episode of restraint itself reveals the Court’s structural centrality. The impeachment crisis had already migrated to the STF because political actors were unable to produce a minimally legitimate solution on their own. The Court stood as the only institution capable of redefining the juridical boundaries of the process and stabilizing the conflict. Its decision not to exercise that role fully did not signal peripheral status, but the opposite. It demonstrated that the responsibility for resolving the constitutional meaning of impeachment had already shifted to the Court. Self-restraint here appears not as distance from politics, but as a conscious refusal to replace a political system that had ceased to function effectively. The very possibility of restraint was evidence that STF had become the institutional locus where the crisis ultimately converged.
The Car Wash Operation represented the opposite movement: an expansion of exceptionalism, initially tolerated and partly legitimized by STF, in the name of a moralizing anti-corruption agenda. When excesses became evident—selectivity, violations of guarantees, collusion between the judge and the prosecution— the STF was again called upon to reconstruct limits that had been eroded, including through its own decisions that endorsed lower-court practices.
Both episodes reveal a reactive STF, deciding not from a coherent project of constitutional jurisdiction, as determined by the 1988 Brazilian Constitution, but as a response to successive crises in a context of political weakening.
The Bolsonaro Government: Authoritarian Administration, and the STF as a Containment Institution
The government of President Jair Bolsonaro pushed this reactive dynamic to a new level. Faced with an Executive that openly challenged basic democratic rules, the STF assumed a role not foreseen in institutional manuals: that of a containment institution –meaning a body that acts to restrain, neutralize, and limit institutional and political actors whose conduct threatens constitutional order, stepping in where other branches fail to provide effective checks.
Atypical inquiries opened ex officio by the Court itself, direct designation of reporting justices, vague facts, lack of clear object delimitation or deadlines, expansive individual decisions, and direct intervention in the face of serious actions and omissions by the Prosecutor General’s Office (then headed by Augusto Aras) and Congress positioned STF as the primary institution controlling executive abuses. All this occurred fundamentally because other institutions did not act.
Retrospective comfort should be avoided. The STF acted in response to a real threat to democracy, and its intervention was decisive in preventing more severe ruptures. This must be acknowledged. The problem, however, lies not only in the necessity of intervention, but in the normalization of heterodox forms of action, often outside constitutional and legal parameters. What appeared to be crisis jurisprudence gradually gave rise to new rules and new limits.
Exceptional measures leave permanent marks. The STF and its justices learned to occupy the center of the system. Once an institution—and its justices—learn to be central, with wide influence and decision-making power, they rarely know how to retreat.
January 8th, 2023: The Dangerous Narrative of the Brazilian Supreme Court as Savior of Brazilian Democracy
On January 8th, 2023, thousands of supporters of former President Jair Bolsonaro stormed and vandalized the seats of Brazil’s three branches of government in Brasília, including the buildings of Congress, the Presidential Palace, and the Brazilian Supreme Court, in an attempt to contest the recent election result and disrupt the constitutional order. These events consolidated a powerful narrative: the Brazilian Supreme Court as the savior of Brazilian democracy. This narrative is understandable, but dangerous.
Constitutional courts should not be heroic. Nor should their justices be turned into heroes. When this happens, it is because the system failed earlier. The true risk lies not in a firm response to a coup attempt, but in transforming that response into a permanent institutional identity.
After the emergency, the hardest question remains: how is normality reconstructed? How is responsibility returned to politics, which today rests almost exclusively on the STF?
The Brazilian Supreme Court Today: Centrality without Stability
Today’s STF is extremely powerful, but also institutionally fragile. Fragile not for lack of authority, but due to excessive personalism, deficits in collegiality, repeated use of individual decisions with structural effects, and, more recently, its full engagement as a third round of politics through its Center for Consensual Conflict Solutions (NUSOL).
Deeper problems add to this: ambiguous impartiality by some justices, insufficient distance from politics and politicians, excessive proximity to corporations and business actors, and an equally ambiguous relationship with public opinion and the media.
The central problem is not judicial activism, nor the tenure of the justices. It is deeper. STF has become a permanent substitute for politics. No democracy can function in a healthy way under a model in which justices act like politicians but decide like judges.
At the same time, it is illusory to imagine that STF will simply withdraw voluntarily. As long as politics does not recover decision-making capacity, STF will continue to be called upon to fill this space.
A Deliberately Uncomfortable Conclusion
My conclusion is not reassuring. The STF is neither the authoritarian villain some people denounce, nor the democratic hero others celebrate. It is an institution trapped in a paradox: necessary to avoid a democratic collapse in Brazil, but structurally incapable of sustaining a living democracy on its own.
The true challenge is not to discipline the STF nor to glorify it, but to rebuild a political system capable of deciding, deliberating, and assuming responsibility. Without this, the STF, however well-intentioned, will accumulate a power it cannot exercise without costs and distrust.
The STF is not the origin of our democratic problems. But neither is it their definitive solution. It is, above all, an uncomfortable mirror of the crisis of politics in Brazil and of the personalist, individualist voluntarism of justices who, not infrequently, seem to wish to be greater than the very institution to which they belong.
Suggested citation: Miguel Gualano de Godoy, The Brazilian Supreme Court at the Center of Politics, Int’l J. Const. L. Blog, Feb. 11, 2025, at: http://www.iconnectblog.com/the-brazilian-supreme-court-at-the-center-of-politics/
[1] Former clerk of the current Chief-Justice Edson Fachin at the Brazilian Supreme Court. Attorney at Law based in Brasília and Curitiba, Brazil. E-mail: miguel@godoy.io.