Brazil’s Increasingly Politicized Supreme Court

—Juliano Zaiden Benvindo, University of Brasília

Brazil was faced with a tragic event this January. Justice Teori Zavascki, one of the most respected members of the Brazilian Supreme Court, was one of the five victims of a plane crash into the sea near Paraty, a colonial town off the coast of Rio de Janeiro state. His death immediately stirred up conspiracy theories, because he presided over, at the Supreme Court, the so-called “Car Wash” probe into the massive bribery scandal involving senior politicians and prominent figures of the business sector.[1] Preliminary investigations, however, have suggested that the pilot probably lost control of the aircraft amid heavy rain.[2]  President Michel Temer was then tasked with the duty of appointing a new justice to the bench. In normal circumstances and other times, this procedure would generate little social interest in Brazil. No longer. The debates over who would be the next justice gained momentum and the potential nominees were closely scrutinized both by the traditional media and on social media. As a symptom of a soaring influence of the Brazilian Supreme Court over matters of significant social impact, it is natural that justices have become a key issue in the political spectrum. Is Brazil heading towards a similar system of politicized appointments as the U.S. Supreme Court?

As is widely known, the selection of justices for the U.S. Supreme Court has long been the subject of serious debates, and, particularly in matters of political disagreement such as abortion and gay rights, has been used as a strategy to overturn the Court’s precedents. Robert Post and Reva Siegel, while critically examining the distinct interpretations of backlashes after Roe v. Wade on abortion, for example, call it ”Roe Rage,” which has led academics to lose confidence in the willingness of the Supreme Court to advance progressive agendas amid “the ferocity of the conservative counterattack.”[3] Recently, this conflict reached its peak during the blockade Republicans imposed on President Obama’s nominee, Merrick Garland,[4] and following President Trump’s nomination of the conservative judge Neil Gorsuch to the bench. Nominees for the Supreme Court have generally shared values and opinions with the incumbent President and his party, and, despite the expectation of acting independently once on the bench, history has proven what Lee Epstein and Eric A. Posner describe as the “loyalty effect,” although one that has been less strong in the case of Republican justices.[5] The nomination of a justice to the Supreme Court is therefore an episode that intimately links law with politics. It has become such a political event that is not surprising to see President Trump unveiling his nominee in such an unorthodox manner that the New York Times would dub it “The Supreme Court Meets Reality TV.”[6]

The formal procedure for appointments in Brazil is practically identical to that in the United States: justices are nominated to the Supreme Court by the President and then must be confirmed by the absolute majority of the Senate after a confirmation hearing.[7] Still, justices’ appointments to the Brazilian Supreme Court have not been so openly debated nor have they become, as recently happened with President Trump’s announcement of his nominee Neil Gorsuch, a theatrical event broadcast nationally. Moreover, the nominees’ political affiliations have generally been rather blurry, although some were affiliated to a party before taking their seats on the bench and their controversial behavior afterward has been questioned.[8] In any case, due to the significant fragmentation and weaker configuration of political parties in Brazil, comparisons in this regard with the United States may be misleading. In Brazil, political parties have historically had inconsistent platforms and acted through flimsy coalitions, thereby diluting the polarization and politicization of constitutional law. During several years since democracy was reinstated in 1985, the appointment of a Supreme Court justice was an ordinary proceeding and, except for legal experts, an uninteresting event. Presidents seemed not to really gather the political significance of these appointments and the confirmation hearing at the Senate looked like a formality of little importance.

History may explain this scenario. The Supreme Court, right after the enactment of the Constitution of 1988, was practically the same, both in its structure and composition, as the Court during the prior dictatorship. Its members successfully lobbied the Constituent Assembly of 1987/1988 to keep their status virtually untouched, and even blocked left-leaning proposals for the creation of an autonomous Constitutional Court dedicated exclusively to constitutional matters.[9] Moreover, they clearly expressed the sentiment that the transition to democracy should not lead to more radical changes to the constitutional framework, arguing that that moment was just the end of a cycle and not a rupture with that past.[10] Therefore, despite being called the “Guardians of the Constitution,” the identification with that past was still deep-rooted in the justices’ minds. This characteristic can be especially noted in the way they delivered their opinions, normally declining to dissent from the policies promulgated by either the government or the Congress. It is little wonder that, in the first years after democracy, the Court’s excessively self-restrained behavior, normally based on the interna corporis doctrine, a strict interpretation of the convenience and opportunity of administrative acts, or the emphasis on so-called “programmatic norms, was its hallmark. As a consequence of its rather limited presence in core political and social matters, nobody except lawyers really knew the names of the Supreme Court’s justices or had any serious concern for their attitudes, values and backgrounds.

This scenario has progressively changed as the Supreme Court has gained prominence as a central player in Brazilian democracy. Especially from the 2000s onwards, the Supreme Court has increasingly adopted more active behavior towards matters of substantial social and political impact. Doctrines of self-restraint have been tempered by more flexible interpretative methodologies, such the principle of proportionality, and far-reaching concepts, such as the idea of human dignity as a super principle or, more recently, the “unconstitutional state of affairs.”[11] The Court has directly interfered with legislative affairs and government policies as well as advanced social agendas. Just in 2016, to cite a few examples, the Supreme Court was a decisive player during the impeachment trial of then President Dilma Rousseff,[12] suspended the speaker of the lower house of Congress from office in a criminal investigation,[13] ruled on abortion [14] and on public servants’ right to strike,[15] and began discussing the impact of health rights litigation on the public health service.[16]

A stronger Supreme Court has led naturally to a greater interest in the appointment of its justices. But, especially in the political arena, this has also been a deeply strategic move. Unlike in the United States, in Brazil justices have a huge amount of power that can be exercised individually, without the support of the rest of the institution. Individual justices can, for instance, suspend a hearing to further examine a case and adjourn that decision indefinitely,[17] unilaterally issue a preliminary injunction on matters of substantial impact, and, as rapporteurs, decide when to bring the case to a collective decision.[18] Precedents, by the same token, have much less importance, and incoherence prevails in many subjects. These institutional flaws have led to what Diego Werneck Arguelhes calls a “safe haven for political justices.”[19]

After some suspense and bets, amid a political crisis and a criminal investigation involving many bigwigs in Congress, President Michel Temer nominated Alexandre de Moraes, the justice minister of his government and a political figure affiliated with the Brazilian Social Democracy Party (PSDB), for the Supreme Court. His political background notwithstanding, his legal credentials are also in question. Even though he is a professor of constitutional law at the University of São Paulo and has written some books in the field, scholars and the media have mentioned the shallowness of his works[20] and even exposed the occurrence of plagiarism.[21] His nomination is emblematic of the moment Brazil is going through and points to how the current government seems to be taking advantage of the Supreme Court’s institutional flaws and its soaring power to set up a political court.[22] This is a critical moment in Brazilian democracy. If there is any hope, however, it lies in the fact that, now more than ever, Brazilians have started to critically discuss who will be their next Supreme Court justice.

Suggested citation: Juliano Zaiden Benvindo, Brazil’s Increasingly Politicized Supreme Court, Int’l J. Const. L. Blog, Feb. 16, 2017, at: http://www.iconnectblog.com/2017/02/brazils-increasingly-politicized-supreme-court/

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[1]        Matt Sandy, A Key Judge in Brazil’s Graft Scandal Just Died in a Plane Crash. Few Think It is an Accident, Time (Jan. 23, 2017), http://time.com/4642972/brazil-teori-zavascki-brazil-corruption/; Jonathan Watts, No Mechanical Issues in the Plane Crash that Killed Judge in Brazil Corruption Scandals, The Guardian (Jan. 24, 2017, 8:54 PM), https://www.theguardian.com/world/2017/jan/24/brazil-corruption-teori-zavascki-plane-crash-investigation

[2]       Fausto Macedo, Áudios indicam desorientação de piloto do avião que caiu no mar e matou Teori, Estado de S. Paulo (Jan. 24, 2017, 1:11 PM), http://politica.estadao.com.br/blogs/fausto-macedo/aeronautica-nao-encontra-qualquer-anormalidade-no-aviao-de-caiu-no-mar-e-matou-teori/

[3]        Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harvard Civil Rights-Civil Liberties Law Review 374 (2007).

[4]       Nina Totenberg, 170-Plus Days and Counting: GOP Unlikely to End Supreme Court Blockade Soon, NPR (Sep. 6, 2016), http://www.npr.org/2016/09/06/492857860/173-days-and-counting-gop-unlikely-to-end-blockade-on-garland-nomination-soon

[5]        See Epstein L and Posner EA, Supreme Court Justices’ Loyalty to the President (2016) 45 The Journal of Legal Studies 401.

[6]       Frank Bruni, The Supreme Court Meets Reality TV, NY Times (Jan. 31, 2017), https://www.nytimes.com/2017/01/31/opinion/the-supreme-court-meets-reality-tv.html

[7]        Brazilian Federal Constitution, art. 101.

[8]       See Gabriel Mascarenhas, Senado recebe pedidos de impeachment de Gilmar Mendes, Folha de S. Paulo (Sep. 13, 2016), http://www1.folha.uol.com.br/poder/2016/09/1813119-senado-recebe-pedidos-de-impeachment-de-gilmar-mendes.shtml

[9]       Andrei Koerner & Lígia Barros de Freitas, O Supremo Na Constituinte e a Constituinte no Supremo (2013) 88 Lua Nova 147, 164-65.

[10]      See Ibid, 145-46.

[11]      See Thiago Luís Santos Sombra, The “Unconstitutional State of Affairs” in Brazil’s Prison System: The Enchantment of Legal Transplantation, Int’l J. Const. L. Blog, Sept. 30, 2015, at: http://www.iconnectblog.com/2015/09/the-unconstitutional-state-of-affairs-in-brazils-prison-system-the-enchantment-of-legal-transplantation/

[12]      See STF, ADPF 378 ED.

[13]      See STF, AC 4.070

[14]      See STF, HC 123.306

[15]      See STF, RE 683456.

[16]      See STF, RE 566.471, RE 657.718,

[17]      Internal rules establish a limit of 10 days with a 10 days extension, if needed, but these rules are not followed in practice. See, e.g. Joaquim Falcão ética al., III Relatório Supremo Em Números – O Supremo e o Tempo (FGV Direito Rio 2014) 89.

[18]      See Diego Werneck Arguelhes, Supremo: Porto Seguro para Ministros Políticos, JOTA (Feb. 7, 2017), http://jota.info/colunas/supra/disfuncao-stf-encoraja-escolha-de-alexandre-de-moraes-07022017

[19]      Ibid.

[20]      See Marcelo Camargo, Obra de Alexandre de Moraes apresenta cópia de autores e falta de rigor técnico’, Justificando (Feb. 9, 2017),http://justificando.cartacapital.com.br/2017/02/09/obra-de-alexandre-de-moraes-apresenta-copia-de-autores-falta-de-rigor-tecnico-e-pensamento-acritico/

[21]      Fabio Victor, Thais Bilenky & Diogo Bercito, Obra de Alexandre de Moraes tem trechos copiados de livro espanhol, Folha de S. Paulo (Feb. 9, 2017), http://www1.folha.uol.com.br/poder/2017/02/1857103-obra-de-alexandre-de-moraes-tem-trechos-copiados-de-livro-espanhol.shtml

[22]      Felipe Recondo, Análise: Temer quer um Supremo Político, JOTA (Feb. 7, 2017), http://jota.info/artigos/temer-quer-um-supremo-politico-07022017