In his 2018 electoral campaign, Jair Bolsonaro stirred tension with the Brazilian Supreme Court (Supremo Tribunal Federal, “STF”) by openly defending packing it with new appointees. He said he would expand the STF from 11 to 21 judges to “change the fate of Brazil.” Since then, presidential threats against the court have become a recurring feature of Brazilian politics under Bolsonaro.
In 2021, the president targeted two specific judges, Luis Roberto Barroso and Alexandre de Moraes. Judge Barroso and Bolsonaro had already clashed in 2020, when Barroso became president of the Superior Electoral Court (TSE), the institution in charge of organizing and supervising elections. Bolsonaro falsely claimed to have uncovered evidence of fraud in the electronic voting system, and that the TSE was behind it. After Barroso allied with other authorities and social actors to defend the electoral system, and argued against amendment proposals requiring “print receipts” for each vote in the electronic ballots, Bolsonaro renewed his attacks on the judge. In one such episode, the president said “a single man cannot decide the future of Brazil on the basis of fraud.”
Bolsonaro has also targeted Judge Moraes, who in July 2021, using reports from the federal police, pointed to the possible existence of a “digital criminal organization” formed to promote disinformation, involving the president and key political allies. In response to these investigations, Bolsonaro renewed his threats, encouraged mass protests, and mobilized his followers against the court. On Brazilian Independence Day, September 7th 2021, more than 120,000 Brazilians took to the streets of Brasília and São Paulo to protest the political establishment and the STF. During the protest in São Paulo, Bolsonaro said that Moraes would have to either “fit in” or leave the court. Returning to the issue of electronic ballots, he once again attacked Barroso by saying that he would not “take part in a fraud sponsored by the TSE’s president.”
What has Bolsonaro accomplished with these years of public attacks and threats against the STF? While he has brought far right, illiberal, and anti-democratic views into the mainstream, Bolsonaro has so far been unable to curb, pack, or reform the STF. Notably, no other president since Brazil’s democratization in 1985 has suffered so many judicial defeats. This piece discusses three factors that have shaped the STF’s ability to constrain Bolsonaro: (1) the political dynamics of COVID-19 in Brazil; (2) the STF’s expansion and deployment of its uniquely broad criminal jurisdiction; (3) the “legislative shield” the court built across party lines.
Bolsonaro and COVID-19
Since March 2020, COVID-19 has caused more than 655,000 deaths in Brazil. Throughout this crisis, Bolsonaro has denied scientific evidence on COVID-19, public health risks, official statistics, and the efficacy and safety of vaccines. He has rejected the use of the most restrictive measures to fight the public health crisis.
Though his government fought in court against mandatory vaccination and mask use, among other restrictions, he was widely unsuccessful. The STF unanimously affirmed, for example, that local governments could adopt their own restrictive measures, considering available scientific evidence, international guidelines, and local realities.
Since democratization in 1988, the STF has overall ruled in favor of the federal government, and only infrequently sided with Brazilian states. By campaigning against public health restrictions in the face of mounting scientific evidence, Bolsonaro alienated judges, public opinion, and mainstream politicians. Beyond his grassroots supporters, his aggressive laissez-faire stance was unpopular across the political spectrum and made it easier for a traditionally deferential court to check him more aggressively (and often unanimously).
The STF’s Criminal Jurisdiction
Beyond disinformation and attacks on democratic institutions, the STF is also investigating Bolsonaro due to accusations of his interference with the federal police to protect relatives and political allies. Four of Bolsonaro’s sons have been investigated by the STF and other courts on charges ranging from corruption to illegal dissemination of disinformation.
Though the 1988 Constitution created a vibrant system of judicial review in Brazil, the court’s main resource to constrain Bolsonaro has not been its judicial review, but rather its criminal jurisdiction. The STF retains sole power over most criminal investigations and proceedings against all senators, deputies, ministers of state, and the president himself. While the court has used these powers against politicians in the past, the STF has expanded its jurisdiction throughout the Bolsonaro presidency to directly initiate and control certain investigations. In April 2019, for example, Chief Justice Dias Toffoli announced that, in cases of online crimes against the judges, their families, or the “honor” of the STF, he could appoint a fellow judge (Moraes, in this case) to head investigations, which previously had to be initiated by the Attorney General’s office or the federal police before a lower court. Those initial investigations have since spawned several others, affecting Bolsonaro and many of his allies. While that initial expansion of power over criminal proceedings was presented as necessary to protect the “honor” of individual STF judges, since 2019 these new powers have been reconfigured. The court has been able to present them to the Brazilian public as tools to protect democratic institutions in general.
The STF’s “Legislative Shield”
The STF’s expansive use of its criminal jurisdiction against Bolsonaro and his allies would not be possible without at least some political support from Brazil’s Congress. However, in a clash between the court and the president, one would expect this Congress—the most conservative in decades—to pick Bolsonaro’s side. Though Bolsonaro has failed to build a solid legislative coalition to push his legislative agenda, he has maintained enough congressional support to discourage impeachment attempts, which must be authorized by a 2/3 majority of the House of Representatives.
Bolsonaro has built an effective “legislative shield” against impeachment. [1] However, he has not succeeded in turning this shield into a sword against the STF. Congress has consistently signaled it will not support attacks on the court.
Early in 2019, attempts to create a congressional committee to investigate the judiciary failed. In February 2021, one of Bolsonaro’s most radical allies in Congress, Bia Kicis, became chair of the House’s judicial affairs commission. Kicis specializes in court-curbing proposals, but she has so far been unable to pass this agenda through Congress. Legislators also endorsed the detention of Rep. Daniel Silveira, who had publicly threatened STF judges. Congress has the power to suspend judicial orders to detain its members. In choosing not to suspend Silveira’s detention, representatives signaled that they will not protect their extremist colleagues.
In an unprecedented move, Bolsonaro filed an impeachment petition in the Senate against Judge Moraes. But the Senate’s president unceremoniously dismissed the petition, considering the charges manifestly lacked in substance.
In October 2021, a Senate investigation committee on governmental mishandling of the pandemic recommended criminal prosecution of Bolsonaro and other high-ranking officials. The committee’s president recently asked Judge Moraes (as part of the judicial proceedings on anti-democratic threats) to investigate Bolsonaro’s recent wave of public health disinformation, in which he associated vaccines with increased chances of contracting HIV. These senators legitimized the STF’s expansion of investigative powers, channeling it against Bolsonaro himself.
Congress still supports the Bolsonaro government, but has so far refused to support attacks on the court – evidence of the STF’s legislative shield against Bolsonaro.
Moreover, since 2019, the Court has backtracked on its previous support for the Car Wash Operation, a large-scale corruption investigation that eventually led to the conviction (recently annulled by the Court) of former President Lula. Beyond Lula’s specific case, the Court’s new stance signals greater restraint in prosecuting the political class in general. The STF’s recent moderation on this front—picking its battles against politicians, instead of the whole establishment—has probably helped it in building its legislative shield.[2]
Even if the STF focuses on extremist politicians and social actors, its expansion of criminal jurisdiction may not be sustainable. To many critics and defenders of the Car Wash Operation, judicial disagreement in criminal cases involving politicians often seems to be driven not by law, but by pragmatism. Whatever their outcome, these criminal cases typically divide both the court and its audiences, with consequences for the STF’s public standing.
While confidence in the STF has increased during the pandemic, according to the latest Justice Confidence Index, it is still lower than it was in 2011, before the rise of high-profile criminal cases. Moreover, 49% of respondents agreed that “STF justices are like any other politician.” Many people might now trust the court on pragmatic grounds: they might agree the STF should check Bolsonaro by any means possible, regardless of if it is the constitution or political necessity driving these decisions.
Conclusion and Recommendations
For the moment, then, Bolsonaro’s attacks on the STF and public health initiatives might have bolstered support for the Court’s uses of its criminal jurisdiction to protect itself and democracy. The STF’s example shows that legislative support and public opinion are crucial for courts resisting illiberal presidents, especially when these presidents adopt unpopular views and policies. However, the STF’s success also illustrates the implications of this unique combination of judicial review and active criminal jurisdiction over politicians. The momentary boost of legitimacy experienced by the court might not be sustainable in the long run, once the court is not facing a president so threatening and unpopular as Bolsonaro.
Moreover, while criminal powers have been useful to check the president in the short run, it is dangerous to concentrate so much of it in a single institution. In the case that Bolsonaro gets re-elected, he will have the chance to make several appointments to the court, in addition to the two he hasalready made (Judges Marques, in 2020, and Mendonça, in 2021). With another mandate, he would be able to increasingly shape how the STF deploys its criminal powers, which might then be used against Bolsonaro’s own political adversaries. Over time, elections can transform this powerful court from an independent check into a presidential ally.
[1] For the idea of a presidential “legislative shield” against removal from office, see PÉREZ-LIÑÁN, Aníbal. A two-level theory of presidential instability. Latin American Politics and Society, v. 56, n. 1, p. 34-54, 2014.
[2] See Da Ros, L. and Taylor, M.M. “Bolsonaro and the Judiciary: Between Accommodation and Confrontation.” In Birle, P.; Speck, B. (eds.) How endangered is democracy? Berlin: Ibero-Amerikanisches Institut (IAI), 2022.
This text is based on a presentation in the event “Populism and the Courts in Latin America”, David Rockefeller Center for Latin American Studies, Harvard University, October 19, 2021. I would like to thank Steven Levitsky and Gretchen Helmke for their comments on the panel, and Evandro Süssekind, Felipe Recondo, Rogério Arantes, Juliana Gomes, Thomaz Pereira, Natalia Vasconcelos, and Lucas Novaes for their comments on a previous version of this text, which reflects current events in Brazil as of March 2022.
…
Diego Werneck Arguelhes (LL.M., J.S.D., Yale Law School) is an Associate Professor of Law at Insper – Institute for Education and Research, São Paulo, Brazil. He is the founding co-chair of the Brazil Chapter of the International Society for Public and International Law (ICON-S).
Image Credit: Ivano Gutz, CC BY-SA 3.0
