Passiveness, Activism and Constitutional Bullying: The Supreme Federal Court and Brazil’s Fragile Rule of Law

1 Introduction

One of the main features of contemporary constitutionalism has been the rise and consolidation of judicial review in democracies after World War II. With Marbury v Madison, the US Supreme Court made judicial review official, transforming it into a crucial element of the United States’ constitutional design. It was not until 1920 that a different model was developed as a result of Hans Kelsen’s proposal for the creation of a Constitutional Court in Austria, which would be tasked with the concentrated and abstract review of statutes and the protection of fundamental rights. To enforce individual rights and liberties, judicial review was introduced in western European countries, such as Germany (1945), Italy (1948), Greece (1975), Spain (1978), Portugal (1976), and France (2008). A similar practice spread to post-communist Eastern European countries with the collapse of the Soviet bloc, including Hungary (1990), Poland (1986), Russia (1991), Bulgaria (1991), Romania (1992), and Slovenia (1993). Recent developments have also brought judicial review to Asian countries – Mongolia, Bangladesh, Hong Kong, India, Malaysia, Singapore, South Korea, Taiwan, and Thailand – and Africa – especially with the post-apartheid experience of the South African Constitutional Court. Furthermore, the new commonwealth model of constitutionalism exhibits specific institutional arrangements, such as the introduction of a bill of rights in Canada (1882), and more recently in the UK (1998), New Zealand (1990), and Australia (2004), replacing the old model of legislative supremacy.^[1] There can be no doubt that there has been a global expansion of judicial power. This has raised questions regarding the authority, institutional capacity and legitimacy of these courts.

Most Latin American countries – including Brazil – have followed this global trend. As a result of decades of authoritarian regimes and military dictatorships, the region experienced lengthy periods of political instability and massive violation of human rights by public officials. With the return to democracy in Brazil, a new constitution was drafted in 1988 and this is considered to be the most progressive in the country’s constitutional history. The Brazilian Constitution (CRFB) strengthened the judicial power wielded by the Supreme Federal Court (STF) in such a way that it is now allowed to review federal, state, and local statutes. Furthermore, this Court also exercises the power of judicial review over constitutional amendments. At the same time, the STF is the apex court of the judicial system and has the function of stabilizing and standardizing the interpretation of the law. The Brazilian system thus combines the abstract model of judicial review – in which the STF functions as a Constitutional Court – with the diffuse model – in which the STF has the final say in the judicial system. Gradually, however, a system characterized as juristocracy has built up, with an unprecedented shift of decision-making power from the political sphere to the Court.^[2] After all these years, it could be argued that Brazilian democracy has turned into a sort of supremocracy.^[3]

In this scenario, the political ascension of Courts composed of unelected and uncountable judges has sparked a debate regarding the so-called ‘counter-majoritarian difficulty’.^[4] However, although political institutions are fundamental for any liberal democracy, the constitution cannot simply be ‘[taken] … away from the Courts’ and ‘returned’ to the people, especially under populist regimes. For this reason, various issues that should be left to political actors have been shunted, voluntarily or not, into the sphere of the courts. This has heightened institutional tensions between judges and lawmakers.

The present chapter discusses the different roles played by the STF under the 1988 Constitution. The aim is to shift the focus of the discussion regarding the counter-majoritarian difficulty, which insists on the illegitimacy of the judicial review, to the difficulty of being counter-majoritarian, examining the institutional obstacles and limitations attendant upon judicial independence.

This will reveal how these problems develop out of tensions between constitutionalism and democracy. The aim here is, in short, to examine the effects of a veritable transformation of global constitutionalism brought about by the rise and consolidation of constitutional courts in contemporary democratic systems and to explore ways in which such institutions can interact with representative ones.

2 Authoritarianism and Judicial Independence: The Federal Supreme Court under Military Intervention

It is no accident that the judiciary has found fruitful ground to extend its powers in democratic systems. Under authoritarian regimes, the tendency is for judges to be passive or align themselves politically with the Government undermining its counter-majoritan role. In many cases, sweeping authoritarian measures are introduced under the guise of a formal constitution and, under such circumstances, the judiciary reveals itself to be the ‘weakest’ of the three branches of government.

Something similar can be seen to have occurred with the judiciary in Brazil during states of exception. The civil-military coup of 1964 set the scene for a long period of authoritarianism, centralization of power, supression of party-political pluralism, denial of popular sovereignty, and massive abuse of fundamental human rights. Initially, the STF issued important rulings with considerable political impact on the government. One concerned the writ of Habeas Corpus^[5] filed on behalf of Sérgio de Cidade Rezende, a professor of Economics at the Catholic University of Pernambuco, who was arrested for distributing to twenty-six students a manifesto condemning the state of political repression installed in the country. Arrested for subversion, his conduct fell under Federal Law 1,802/53, which defined crimes against the state and against the political and social order. The Court unanimously granted habeas corpus based on academic freedom.^[6]

Thereafter, the Court would have to deal with delicate issues involving a much less even-handed relationship with the executive branch. It issued numerous rulings in favor of individuals subject to political persecution by the government, including former governor of Pernambuco Miguel Arraes (PE), former governor of Goias Mauro Borges, former President of the Republic Juscelino Kubitschek, the journalist Carlos Heitor Cony, and various students, trade-unionists and others who were victims of some kind of government abuse. Every writ of habeas corpus granted was taken as an affront by the most hard-line members of the military junta. In an interview published in October 1965, STF Chief Justice Álvaro Moutinho Ribeiro da Costa voiced harsh criticism of the authoritarianism of the executive, condemning any government act that interfered with the powers of the judiciary. This declaration was the key event that triggered a process aiming to interfere decisively in the structure and functioning of the STF.^[7] Soon after that, President Castello Branco decreed Institutional Act n 2, confronting the judiciary head on. This Institutional Act n 2 envisaged increasing the number of Supreme Court justices. It was the Brazilian Court-packing plan in action. It also excluded from judicial review acts carried out by the ‘Supreme Command of the Revolution’ and by the Federal Government and broadened the jurisdiction of the military courts, allowing civilians to be court-martialed for acts against national security.

In the end, the government succeeded in pushing a reform of judiciary through the National Congress, creating exceptions to the assurances regarding the independence of the judiciary, in so far as it authorized the removal and appointment of judges in cases where the ‘public interest’^[8] was at stake. In 1965, Constitutional Amendment n 16 was approved, creating the right to bring a case immediately before the Supreme Court on the grounds of unconstitutionality, which entailed the introduction of abstract judicial review in the country. However, the only individual legally entitled to file such a suit was the Prosecutor General of the Republic (PGR), appointed by the President, thereby making him an arm of the government within the STF. Thus, the argument that the judicial review of the constitutionality of laws works against a ‘dictatorship of the majority’ and aims to protect the fundamental rights of minorities did not at this time reflect the true situation in the country since the measure rather served to help concentrate power in the hands of the Federal Government, which sought to tame the judiciary and thus neutralize any resistance to the ‘revolution’.

With the Institutional Act n 5, the military dictatorship hardened its position and the STF found itself under attack on a new front. Justices Victor Nunes Leal, Hermes Lima and Evandro Lins e Silva, seen as judges opposing government abuses of power, were forced to retire. Under pressure from then President Costa e Silva, Gonçalves de Oliveira and Lafayette de Andrada, chair and vice-chair of the court, respectively, also retired from the bench. Furthermore, AI-5 suspended habeas corpus in cases of arrests made to maintain order and national security, allowed the Government to retire or resign judges, and authorized a series of restrictions on human rights without any due process of law.

From a broader perspective, such facts reveal the relation between judicial independence and the exercise of political power. In general, when political power is exercised more uniformly, with less fragmentation of power, and, especially when a powerful institutional player with the capacity for retaliation can be identified, it is common for judicial independence to wane. Courts rarely have the facility to oppose the dominant political powers and this explains the passivity or complicity of the judiciary in such situations. On the other hand, the greater the degree of fragmentation and porosity there is in the interplay of political forces, the broader the scope for judicial action, in such a way that courts can, in fact, act as a veto player with regard to decisions taken by governments or parliaments.^[9] It helps explaining why, during the authoritarian regime (1964–1985), the posture of the STF combined sporadic expressions of courage—albeit at high cost—with a predominantly complacent attitude in relation to the political forces of the time.

After the transition to re-democratization, culminating in the adoption of the 1988 Constitution, the judiciary recovered its fundamental assurances of functional independence and, gradually, came to occupy the key position in the constitutional system that it can be seen to occupy in Brazil today.

3 The Brazilian Constitution of 1988 and the Institutional Strengthening of the STF

The years succeeding the drafting of CF/88 would see a complex process of empowerment of the STF unfold. Various factors contributed to this. First the CF/88 contained an extensive bill of fundamental rights and guarantees of these rights. This included the formalization of fundamental rights of various kinds. Apart from the traditional individual rights and civil liberties, the Constitution also guaranteed numerous social, economic and cultural rights, as well as diffuse and collective rights. By incorporating various entitlements and so many goals and public policies to be implemented by the state (ensuring full employment, eradicating poverty and regional and social inequalities, among others), it inevitably assumed the character of a directive constitution.^[10]

This broad constitutional commitment to human and fundamental rights can be seen as the other side of the coin of a past marked by extreme state violence, social exclusion, inequality, and massive human rights abuses.^[11] From this perspective, it can be seen that broad constitutionalization of rights, political goals and social programs points to considerable lack of trust vis-à-vis the political élites, restricting the range of possible choices of majoritarian institutions. At the same time, this has increased the sphere of action of the judiciary, since such matters are now potentially subject to judicial review. With a democratic, binding constitutional document replete with rights, strictly concerned with social justice and material equality, the emerging legal discourse required a higher degree of judicial intervention. That is because, in Brazil, the promises of modernity had never been forthcoming and the welfare state had never been more than a sham.^[12] The proposal now was to renew legal doctrine and reasoning through the constitution and there was much debate as to how to go about transforming the ideals contained in the constitution into concrete reality.^[13]

On the other hand, CF/88 considerably expanded the powers of STF and made it more accessible. The first evidence of this was the extension of the range of legitimate plaintiffs in Direct Action for Declaration of Unconstitutionality (ADIs), breaking the one-time monopoly of the Prosecutor General of the Republic. With this, key institutions and players from civil society (political parties, the Federal Council of the Brazilian Bar Association, State governors, national-level associations, trade union confederations and so forth) gained the genuine opportunity to bring their cases promptly before the STF, especially those concerning minority rights.

Over the years, other instruments have been created. Constitutional Amendment # 3/1993 introduced the Action of Declaration of Constitutionality (ADC), allowing the Court to ratify federal statutes whose constitutionality has been challenged by other sectors of the judiciary (in exercising diffuse and concrete judicial review). In 1999, the Action Against a Violation of a Constitutional Fundamental Right (ADPF) was finally regulated,^[14] which has come to be used as a subsidiary instrument in objective constitutional processes. It should also be pointed out that, apart from these measures, which make it possible to review the constitutionality of—basically—any law or action of the public authorities (at federal, State or municipal level), including constitutional amendments, and which generate decisions with binding effect and erga omnes effectiveness, the Brazilian constitutional system has also accorded the STF the power to take direct action and issue injunctions in cases of omission, allowing the Court to overcome inertia and omission on the part of lawmakers. Such powers are more linked to the role of the STF as a constitutional court, as their aim is to uphold the constitutional order and fundamental rights. However, the Court also possesses numerous other powers related to ordinary jurisdiction and the authority to act as the last court of appeal, with responsibility for ensuring stable jurisprudence and judicial interpretation of the law. The court thus also has the power to decree a binding precedent, as introduced by the Reform of the Judiciary (Constitutional Amendment 45/2004). It is thus easy to see the various reasons for the judicialization of politics and the main issues of national public life.

Under such circumstances, a narrative was developed regarding the potential of the judiciary branch of government, especially the STF, to uphold fundamental rights, including greater involvement of judges in overseeing public policy and government actions.^[15]

4 Progressive Constitutionalism and Judicial Passivity: Expectations and Disappointments after 1988

Despite initial enthusiasm and high expectations regarding the stance that should be adopted by the STF, throughout the 1990s, there was an attitude of self-restraint and little willingness to assume the role of a major political player, even though the Court could review constitutional amendments. To some extent, this pattern of behavior was related to the strong formalist tradition that used to mark the legal reasoning.^[16] There was thus a new progressive constitutional order alongside a still conservative judiciary which experienced great difficulty understanding the impact a transformative constitution should have on their decision-making.

This cautiousness can be exemplified by three instances. First, the STF had incorporated the doctrine of the negative legislator espoused by Hans Kelsen, using it as argument for an erroneous self-restraint. For a long time, this hindered the Court’s ability to review legislative inertia. In fact, in cases of omission on the part of the National Congress, the Court was reluctant to make up for the absence of a legal rule, believing that it was not supposed to act as a positive legislator.^[17] This belief held sway for a long time and was heavily criticized by constitutional scholars.^[18]

The second example concerns the (mis)understanding of the social, economic and cultural rights as programmatic norms or not self-executing provisions. Lacking sufficient consistency to be enforced by judges and Courts, such rules would, it was argued, always require legislative intermediation and only thus would the rights they envisage actually be upheld. Only on hindsight did the STF rule that the interpretation of these as mere directive norms should not ‘turn them into constitutional promises of no consequence’.^[19]

The third example concerns judicial review of executive orders issued by the President of the Republic. This device has come to be used on a routine basis by governments in Brazil and constitutes serious encroachment on the functions of the National Congress. The average number of executive orders was 8.4 per month during President José Sarney’s term of office. The figure was 5.07 per month for the Collor administration and 11.7 for that of Itamar Franco. Use of this measure increased shockingly under Fernando Henrique Cardoso, with 3,000 executive orders having been issued by mid-May 1999, equivalent to 2.7 per working day since this president took office.^[20] This gave rise to a serious distortion of the division of powers system, in such a way that the executive branch arrogated to itself the role of a permanent lawmaker. From the point of view of the Court, assessment of the requirements regarding ‘relevance’ and ‘urgency’ needed to justify issuing an executive order was one of the discretionary powers of the executive and thus ‘a political question’ not subject to judicial review.

These examples show that the STF used the argument regarding the separation of powers to avoid interfering in the decisions of the legislative and executive branches, even when the actions (or inaction) of these bodies were illegal and justified judicial intervention. The Court clearly opted in this instance for a philosophy of self-restraint, which, in the final analysis, constitutes judicial omission and a weakening of its counter-majoritarian function. The Court thus played a much more significant role as an actor of economic governance, often allying itself with the government rather than protecting fundamental rights and restraining power abuse.^[21]

5 The Juristocratic Turn of the STF and Its Counter-Majoritarian Role

Since the beginning 2000s, important issues have been discussed by the STF as part of a movement in which the demand for rights also occurs in circles outside the classical model involving ‘civil society, parties, representation, and the formation of the general will’, thereby reinforcing the counter-majoritarian role of the Court.^[22] In terms of protecting individual rights and civil liberties, there have been important rulings regarding consolidation of freedom of expression (the ‘Marijuana March’ case),^[23] condemnation of hate speech (the ‘Ellwanger’ case),^[24] and the right to publish a biography without the prior consent of its subject.^[25]

The Court has also played a key role in upholding the fundamental rights of minorities, with various important rulings in this field, including (i) authorization of interrupting pregnancy in cases involving anencephalic fetuses,^[26] (ii) extension of the constitutional concept of stable union to include same-sex relationships,^[27] (iii) demarcation of indigenous lands,^[28] (iv) recognition of the legality of affirmative actions in public universities,^[29] (v) upholding the constitutionality of the Quotas Act (Federal Law n 12.990/2014) in the federal civil service,^[30] (vi) upholding the right of transgender individuals to change their name and gender on official documents without the need to undergo sex-change surgery or receive judicial authorization,^[31] and (vii) classification of acts of homophobia and transphobia as crimes.^[32]

In the field of social, economic, and cultural rights, the Court has relinquished the traditional view that such rights can be summed up as directive rules, as outlined above. However, it has revealed itself to be more cautious when economic impacts or a ‘chain reaction effect’ can result from its rulings, not infrequently using the argument regarding the ‘cost of rights’ to excuse failure to uphold some social rights.^[33] On this point, the position of the Court suggests that it is more vigilant regarding violations of individual rights and liberties than in relation to social and economic rights, since, purportedly, the former incur no public spending or, at least, far less than that required by social, economic and cultural rights. However, this piecemeal approach to the system of fundamental rights may produce undesirable results, when social rights, which are often directly linked to the need for minimal protection of the right to live with dignity, are not accorded due legal protection.

On the other hand, the Court has indicated that it adopts an activist stance with regard to judicial review of inadequate public policy, when it recognizes a so-called ‘unconstitutional state of affairs’ in relation to the Brazilian prison system.^[34] In this case, there is a massive and systemic violation of human rights resulting from grave structural failures and negligence on the part of various spheres of government and multiple state institutions. In cases such as this that clearly involve great complexity, it is unlikely that a court, acting alone, will possess the means to bring about more robust social changes. This would be the case with dialogic judicial activism that allows the Court to maintain an institutional link with other actors, in such a way that the role of the Court is akin to that of a forum for coordination and moderation of actions to be undertaken by stakeholders. On the contrary, however, there is a risk that such rulings are much more political and symbolic than legal and biding, and this detracts from their desired effect.

Apart from important interventions regarding fundamental rights, the STF has also been responsible for rulings that have had a considerable impact on the electoral system. The first concerns the declaration of unconstitutionality of provisions contained in Federal Law n 9,096/95 (the Political Parties Act), which established the so-called ‘barrier clause’, restricting the access of minor parties to free radio and television broadcasts and public resources from the Political Party Fund.^[35] The prevailing central argument was that this clause worked to the detriment of minor parties, constituting a violation of their rights as political minorities. The position adopted by the Court received harsh criticism for encouraging the creation of new parties in a system already on the brink of collapse and for invalidating a legitimate option for the democratic lawmakers. In 2017, the National Congress, as part of a discussion of political reform, approved Constitutional Amendment n 97, which established a new model for the clause regarding elections to be adopted the following year, requiring parties to obtain a minimum number of votes to gain access to party funding and radio and television airtime. A good example of a legislative backlash.

In another instance, the Court recognized disloyalty to the political party as a new due cause for loss of elected office, as a way of inhibiting the well-known practice of ‘switching’ party, although this restriction did not apply to majoritarian elections.^[36] To get around the restrictions imposed by the STF, Congress approved Constitutional Amendment n 91/2016, which allowed its members a short ‘window’ of time, in which they could change party without losing their seat. Various lawmakers eventually availed themselves of the new law and changed party, in blunt defiance of the STF ruling.

On another controversial matter, the Court declared private funding of election campaigns to be unconstitutional, in an effort to reduce the influence of economic power on the political process, which had been identified as one of the causes of corruption scandals involving sleazy relations between the public and private sectors.^[37] However, the Court did not restrict itself to declaring unconstitutional the legal norms regulating the elections of that year. It went on to lay out a justification for a new model of party funding to replace the one deemed to be illegitimate, in a move that was clearly at odds with its conventional role as a negative legislator.

In the midst of a series of crises related to Operation Car Wash and the political scandal that had shook the country, the Court addressed the sensitive issue of removal of lawmakers from office. The STF ordered the removal of the then Speaker of the Chamber of Deputies from office to which he had been elected, in view of various strong indications that he had used public office to interfere in the criminal investigations against himself.^[38] As there is no express provision in CF/88 for the removal of members of Congress by judicial order, the Court announced that it was dealing with an ‘exceptional’ situation, in view of the overwhelming body of evidence. Shortly thereafter, the Court would rule on a similar controversy regarding the acceptance of the accusations leveled against the Speaker of the Federal Senate. On this matter, Justice Marco Aurélio ruled unilaterally that this senator should be removed from the office of Speaker of the Legislative Body, sparking intense criticism from other senators. Senator Renan Calheiros refused to accept notification of the ruling, with the support of the Senate Directing Board, which declared that it would only comply with the ruling if it were confirmed by a Plenary Session of the STF. An institutional impasse for the Court had been put in place. On the one hand, there was a concern to uphold the decision of one of its members, but, on the other, it was crucial to maintain the integrity and authority of the Court. A plenary session of the Court adopted a compromise position, ordering the removal of the senator from the line of succession to the Presidency of the Republic, but allowing him to remain a member of Congress.^[39] This incident damaged the Court in so far as it was seen in public opinion as a political deal to save Renan Calheiros and avoid the extreme embarrassment of the Court having to go back on its own rulings.^[40]

It has generally been the case that the precedents of the Court regarding the protection of fundamental rights, especially those of minorities, have undergone substantial change. One of the main sources of legitimacy of courts is precisely their role as rights protectors, avoiding a ‘dictatorship of the majority’. In this respect, the counter-majoritarian function of the STF is especially important. Interestingly, the traditional argument regarding the democratic illegitimacy of the Constitutional Courts in going against elected majorities or popular outcry can be interpreted differently. The fact that judges are not elected and yet may hand down unpopular rulings led Alexander Bickel to claim that the United States Supreme Court is a ‘deviant institution in American democracy’.^[41] He was right in this regard. However, being deviant is not a curse that befalls Constitutional Courts. Constitutional democracy reflects a delicate balance between the representative and majoritarian institutions responsible for political decisions of broader scope and respect for fundamental rights. Counter-majoritarianism thus serves to foster more balanced institutional relations, preventing politics from standing in the way of rights.

Nevertheless, situations in which the Court has had to face hostility from significant institutional actors and political groups have exposed real conflict between the branches, with a genuine possibility that judicial rulings will be disregarded or, to avoid such an undesirable eventuality, tempered by the Court’s interpretations. On the one hand, this may turn out to be just one isolated incident of unusual audacity on the part of those in power, seeking at all costs to show how they can use their authority (or authoritarianism) to intimidate justices. On the other, however, it may also clearly indicate that, in more drastic situations, where judicial independence and the power of the courts are put to the test of the judiciary branch, it is indeed the weakest of the three branches.

6 Anti-Liberalism and Judicial Independence: The STF Subject to Constitutional Bullying?

Throughout the thirty years that the CF/88 has been in effect, we have seen the judiciary grow as an institution, in conjunction with extensive judicialization of politics and a higher level of judicial participation in major national issues, which has drawn some criticism of the Court. However, recent years have seen a series of attacks on the STF by way of intimidation, retaliation and threats of noncompliance with rulings.^[42] ‘Constitutional bullying’ is the term we shall use to refer to this strategy of repeated and continual aggressions against the Court in the context of a populist government that has sought to clog up the system of checks and balances. As we shall see, such efforts should not be confused with mere criticisms of STF rulings. Critical scrutiny of the functioning of institutions, including the STF, is obviously legitimate and has been undertaken from many quarters – academia, the press, political parties, and so forth – and poses no threat to the functional independence of the court as an institution. As a rule, such criticisms, when advanced in a democratic context and in good faith, seek to identify errors and propose alternatives and, thus, improve the Court. ‘Constitutional bullying’ goes beyond legitimate questioning of some practice or judicial ruling, taking the form of arbitrary political pressure, perpetrated incessantly with the aim of intimidating Court justices.

Such practices have become commonplace under the administration of President Jair Bolsonaro, with its ultraconservative anti-liberal agenda.^[43] It is worth pointing out that many post-1988 STF rulings, especially those pertaining to the protection of minorities, already put the Court in a position diametrically opposed to the ultraconservative ideology espoused by Bolsonaro. It is thus no surprise that, even before the 2018 presidential elections, then candidate Jair Bolsonaro defended the need to increase the number of Supreme Court justices from eleven to twenty, arguing that he needed to ‘put ten unbiased judges in there.’^[44]

Furthermore, supporters of the Federal Government in Congress defended lowering the age of retirement of Supreme Court justices, thereby opening up new seats for the President to fill with his own appointees. This would be achieved by revoking Constitutional Amendment n 88/2015, which raised the age of retirement of STF justices from seventy to seventy-five. When this amendment was passed, then President Dilma Roussef had the opportunity to appoint new members of the STF, because two of its current members had reached the age of seventy. However, Congress passed Constitutional Amendment 88/2015 to deprive her of this opportunity. It should further be noted that the then federal deputy Jair Bolsonaro voted in favor of the amendment. Then, as President, taking full advantage of criticisms of the STF, he has defended repealing this amendment, which would bring the age of retirement back down to seventy. This would bring forward the retirement of four members of the Court, giving the President the chance to appoint new justices.

Amidst severe criticism of some members of the Court, there has been an increase in the number of calls for impeachment. Calls for impeachment of STF justices acquired a new character after the controversial decision made by Justice Alexandre de Moraes to take out an injunction against the publication of material by a journalist in two media outlets (the O Antagonista website and Crusoé magazine). This was seen by many as unacceptable judicial censorship. The ruling was handed down after an open judicial inquiry set up by Justice Dias Toffoli to look into fake news and attacks on members of the Court.

The populist demeanor of Bolsonaro rapidly hardened and attacks on the Court were consequently stepped up. In late October 2019, the President published on his Twitter account a video in which he appeared as a lion cornered by menacing hyenas. These hyenas were clearly marked as institutions seen as opponents by the President: political parties, the Federal Council of the Brazilian Bar Association (OAB), the mainstream news media, and the STF. In response to the outrage provoked in the aforementioned institutions, the President denied having posted the video. However, in March 2020, in the midst of yet another spat between the government and Congress, a public demonstration was called to protest against Congress and the STF, precisely those institutions that had been the main critics of government decisions. The President then set about inciting his network of supporters to oppose democratic institutions, accusing the latter of vetoing the ‘will of the people’, for which he claimed to be the sole legitimate mouthpiece.

Another episode involving institutional tension between the Federal Government and the STF occurred when Sérgio Moro resigned as Minister of Justice and Public Security in April 2020. Outlining his reasons for taking this decision, Sérgio Moro stated that the President had been planning to interfere politically in the Federal Police by gaining access to information on ongoing investigations. To this end, he was alleged to have appointed Alexandre Ramagem—an individual very close to the President and a personal friend of his sons—to the post of Director General of the Federal Police. However, the Court annulled this decision and the government had to appoint another person to this post. Notwithstanding this, questions remained regarding whether the President intended to exert political control over the operations of the Federal Police, leading the Prosecutor General of the Republic to request a public inquiry to investigate the accusations made by Sérgio Moro against the President. In this context, former Justice Celso de Mello, reporting on the inquiry, requested copies of a recording of a meeting at which the President had expressed, in the presence of Sérgio Moro, his intention to interfere in the Federal Police. The recording of this meeting, apart from confirming the President’s intentions regarding the Federal Police, also revealed an outburst from the Minister of Education, Abraham Weintraub, in which he not only referred to Supreme Court justices as ‘wasters’ but also called for them to be incarcerated.

In May 2020, in the course of investigations into the existence of a criminal organization responsible for the mass proliferation of ‘fake news’ and attacks on members of the STF, Justice Celso de Mello aired the possibility of seizing the cell phones of the President of the Republic and of his son, the city councilman, Carlos Bolsonaro, suspected of being a member of this organization. In this context, before the aforementioned Justice had even reached a decision, the Head of the Institutional Security Cabinet, General Augusto Heleno, issued a public statement implicitly threatening the court. In the end, no warrant for the cell phones was issued.

In late May, after complying with search and seizure warrants against members of Congress and supporters of the President issued in the course of the aforementioned ‘fake news inquiry’, Eduardo Bolsonaro, one of President Bolsonaro’s sons, responded to the Court in an interview, unabashedly stating that a break with democracy was not a matter of ‘if’, but ‘when’. He also revealed that this had been discussed in meetings ‘at the highest level’.

Frictions between the Government and the STF increased over time. On 7 September 2020, Bolsonaro made a speech to an audience of supporters stating that he would no longer comply with decisions ruled by Min Alexandre de Moraes in a gesture that was seen by many as the announcement of a possible institutional rupture.

Bolsonaro and his supporters began to question the integrity of the electoral process. This ended up causing the attacks to also be directed against the Superior Electoral Court (TSE), which is responsible for overseeing the elections. He even defended the carrying out of an inspection carried out by the military to guarantee the smoothness of the electronic ballot boxes, as if the Armed Forces had the institutional role of overseeing political disputes. It is important to understand that the Bolsonaro administration was also responsible for the appointment of thousands of military-persons to civilian public positions, an unprecedented fact since the country’s redemocratization.

As the presidential election approached, the level of tension also rose amid the most polarized election in decades. In this context, it would be questionable to assume that Brazilian democracy was not at risk because there was no formal measure, such as a proposal for a constitutional amendment, to weaken the STF and TSE, or even, on the assumption that the STF itself could exercise judicial review against such acts. Attacks on the Judiciary, in a context of intense misinformation on social networks, meant that every decision against the government was seen by its supporters as a political act by a partisan Court.

Bolsonaro lost the elections. However, bolsonarism, as an authoritarian political movement, continues to legitimize attacks on the institutions responsible for the system of checks and balances and opposes the pluralism inherent in constitutional democracy.

As has been noted, the wave of intimidation of the STF should be viewed in the broader context of an anti-liberal government that is not averse to using legitimate constitutional provisions to achieve illegitimate antidemocratic ends. In recent years, democratic advances have been rolled back in various countries around the world, but not by coups d’états or revolutions, as in the authoritarian regimes of the 20th century. There has been no closing down of parliaments, banning of political parties, removal from office of court justices, nor even the suspension of the constitutional order itself for reason of an imminent overriding threat justifying the concentration of powers in the hands of the executive. On the contrary, governments continue to be elected by broad popular suffrage, but, once in power, set about undermining the democratic constitution. It is interesting to note, at this point, how the rules of the democratic game have been distorted. The stakes are in fact now higher, since democracy is not ultimately eroded by armed coups.^[45] In Brazil, there is no need for new Institutional Acts to threaten democracy, as it occurred during military government: these days, they may come disguised as tweets in the name of free speech and erode its fragile rule of law.

7 Conclusions

Brazil has followed the global trend beginning in the second half of the 20th century of adopting a democratic constitution. One consequence of this has been a strengthening of judicial institutions, especially constitutional courts and supreme courts. However, while the courts have gained political power, there has been a discussion of the risk to democracy of the expansion of judicial power. This has become more strident amidst rising tensions between judges and political actors. Thus, instead of perpetuating the endless debate regarding the democratic legitimacy of judicial reviews, it is of fundamental importance that we understand how the constitutional architecture in fact functions when it includes both majoritarian and counter-majoritarian political institutions. The debate thus shifts from a discussion of whether judicial reviews are compatible with democracy to one involving concrete analysis of the way judges and courts promote fundamental rights and values and the obstacles to effective exercise of their jurisdiction that arise. In view of this, we have highlighted a number of points in the process of consolidation of constitutional review in Brazil, especially the emergence of the STF as a counter-majoritarian institution.

This trajectory has seen some steps forwards and some backwards and has taken place within a context of complex political institutions whose elements determine the independent operation of the Court. Thus, notwithstanding the undeniable shift towards empowerment of judges and courts in the country, care should be taken to avoid falling into the seductive yet complacent discourse according to which judiciary has been converted into an enlightened vanguard. This would entail the replacement of the traditional infallibility of politicians with the infallibility of judges. A brief overview of judicial practice in Brazil shows that various shortcomings taint the legitimacy of judges and these still need correcting.

The new institutional configuration after 1988 does not a priori entail the illegitimacy of representative bodies but opens a dangerous path towards demonization of politics rather than providing a romanticized view of the judicial branch. It is thus necessary to establish parameters that stake out, in rational terms, the extent to which judicial intervention is legitimate, without encroaching on the equally legitimate space of politics. In today’s Brazil, where the tradition of democracy still rests on shaky foundations, imbalances in the complex interrelations between Congress, executive and judiciary may, as seems to be the case today, inflame civilian or military actors to use bellicose language to present themselves as saviors of institutions.

Yet again, the counter-majoritarian character of the STF, far from being undemocratic, is even more necessary in the face of anti-liberal governments who use the tools of democracy to destroy it from within. A constitutional court may not be capable of holding off the destruction of a democracy, but it does not have the option of simply standing passively by as others erode the constitutional order it has vowed to uphold.