Addressing Federal Conflicts: An Empirical Analysis of the Brazilian Supreme Court, 1988–2010

See article 103 of the 1988 Constitution.

Concrete review is exercised by the STF mainly in the context of the court’s original competence as well as under extraordinary appeals – the latter being responsible for the huge caseload faced by the STF: Barroso (2012:127).

Along those lines, cases of original competence of the STF include, among others: civil actions and writs of mandado de segurança; extraordinary appeals; actions of reclamations. See Mendes and Branco (Mendes et al. 2013:1063–1101).

See, for example, Arantes (2006: 231). On mitigating the importance of the STF in deciding cases of federal conflicts and emphasizing that political negotiations among the executive, the state governors and representatives of the states in national Congress, see Rosenn (2005:584). For important implications about the political dimension in the light of the doctrines of the STF: see Vieira (1994, 2008).

Emphasizing that Brazilian judiciary as “exceptionally strong by regional standards”, see Kapiszewski (2012:113). The author also argues that interbranch interactions followed a pattern of accommodation on crucial economical cases decided after the authoritarian period, at 8 and 31, with her dataset being mainly Adins.

Article 102 of the Brazilian Constitution of 1988: “The Supremo Tribunal Federal is responsible, essentially, for safeguarding the Constitution, and it is within its original jurisdiction: (…) f) disputes and conflicts between the Union and the states, the Union and the Federal District, or between one another, including the respective indirect administrative bodies.”

Personal information about the justices for 1988–2010 is available at Table 7.

For another empirical work focused on direct actions of unconstitutionality, but limited to the period from 1988 to 1993, and initiated by political parties: see Castro (1997:246–247).

Decisions in limine are similar to injunctions. Such remedies may be granted by the rapporteur or by a panel of the STF in particular cases – as it occurs, for instance, when the subject matter in question is not novel, i.e., it has already been previously discussed and voted by the Court sitting en banc.

For a study establishing generally the deliberative and argumentative profiles of justices considering Adins between 2006 and 2010, see Sundfeld and Souza (2012).

We emphasize conceptually, since the Brazilian Constitution is significantly long, with several articles that do not necessarily protect constitutional rights as traditionally or conventionally considered. As an example, article 242, paragraph second, states that the Public School Pedro II – located in the city of Rio de Janeiro – shall always be federal.

There are several possible explanations consistent with Shapiro’s conjecture. It could be the case that justices always favor the union because of a pro-federal ideology across the judiciary independently of the President in office. Another possibility is that all Presidents have similar preferences when it comes to favoring the union and all justices, as consequence, have equally identical preferences. Certain aspects of institutional design (such as mandatory retirement at seventy and concerns for other career goals) could induce justices to support any given President rather than exhibiting any special loyalty for the appointer.

Plus 18 decisions of the Presidency of STF and 64 documents in reference to monocratic decisions (for 1988 to January 1, 2012). Despite the intrinsic importance of the decisions of the Presidency, the statistical analysis of a dataset built on single opinions (also including monocratic or individual decisions) is less compelling.

In Portuguese, we used the following key words: “conflito e competência e união e estado e constituição e 1988”, in the section of legal doctrine of the STF website, available at: http://www.stf.jus.br/portal/jurisprudencia/pesquisarJurisprudencia.asp.

This procedure is determined at article 101 of the Internal Rules of Procedure in the STF: RiSTF. The Constitution also requires in article 97 that the principle of reserve of plenary (that is, only a decision en banc of the full court is appropriate) must be observed when courts declare an act to be unconstitutional, with a minimum quorum of qualified majority regardless of the form of constitutional control involved (Barroso, 2012:143–144). Some legal scholars argue that this specific quorum should also apply to the incidental and concentrate forms of control when the STF is the court in question (Moraes, 2012:747).

Notice that the STF judged en banc in 2006 and 2007 0.5% of all the decisions of the STF in those 2 years (Verissimo, 2008:421).

We have excluded six lawsuits decided before the Constitution of 1988: CJ 6718; CJ 6641; CJ 6589; CJ 6658; CJ 6672; CJ 6647. We also excluded eleven lawsuits decided after December 31, 2010: AI 753844 AgR; ACO 1109; ADI 3847; ACO 1136; ACO 987; Rcl 11243; Rcl 2936; ADI 4167; ACO 1534 TA-Ref; Rcl 6235 AgR; AI 796310 AgR. All those lawsuits are based on the search updated by March 20, 2012.

The abbreviations in parenthesis refer to specific types of actions named in Portuguese and that appeared in our dataset, in accordance with the symbols used by the Court. For the complete list of the decisions analyzed, see Appendix, Table 5. See also footnote 19 infra.

Since the seminal work of Werneck Vianna et al. (1999). On the other hand, notice that our dataset has a relatively small number of cases when the full workload is considered given that we focus on decisions by panels or by the Court en banc based on federalism only, as we have explained.

Despite the fact that article 18 of the Constitution assertion that the Federal Republic of Brazil encompasses the Union, the states, the federal district and the municipalities, whereas the text of article 102, f, particularly excludes the municipalities; supra 3.

Those abbreviations are used by the STF. In English, they would be translated as: writ of mandamus; action for non-compliance with a mandatory constitutional precept; action of non-compliance with a STF decision (different from content of court); injunction mandamus (a misleading name, since it can only apply in the case of disobedience to a constitutional norm that lacks a proper implementation measure by one of the elected branches).

In Portuguese, the word union also refers to any group of persons or companies, similar to associations. Hence, the results produced by the STF search engine do not refer solely to “union” as a federal entity, considering its dual meaning in the Portuguese language.

In Portuguese, “ementa”.

The cases included in our dataset reflect the diversity of the powers of the federal union, with conflicts of the pertinent competences encompassing issues as distinct as: the postal service company (Correios); nuclear energy; sea and shores; education; traffic; gamble activity; social security; civil servant employees; indigenous people and land; and environmental protection. Regarding the type of claim, the vast majority (25 decisions) refers to requests for the intervention of the federal government in a particular state. As for the nature of the claims analyzed, conflicts of legislative competence, scope of federal jurisdiction, and taxation are the most represented. It is important to notice that federal jurisdiction peaked from the adoption of the Constitution (1988) until 1997. After that, agreements between the union and particular states referring to fiscal responsibility are dominant. For a list of the decisions of our dataset, see Table 5 and for a list of the decisions containing the nature of the claims involved in the federal conflict, see Table 6.

This research considered eleven decisions by panels: RE 148123, 11.30.1993; RMS 22021, 04.18.1995; RE 165865, 11.03.1997; RE 305996, 04.30.2002; RE 323642, 05.14.2002; RCL 723, 08.13.2002; RE 274902, 09.10.2002; RE 306005A, 09.17.2002; RE 429171, 09.14.2004; RE 361829, 12.13.2005; RE 512468, 05.13.2008.

Since the initial selection was made by the STF search engine itself. Our exclusions were limited to cases that did not contain federal conflicts – as, for instance, when the union is the plaintiff and the defendant is a federal public enterprise with a state, for instance. Furthermore, in regression five we control for a stricter concept of union, as explained infra.

Here, we used the search tool of the website known as inteiro teor, that is available at: www.stf.jus.br/portal/inteiroTeor/pesquisarInteiroTeor.asp.

Because of the nature of the underlying legal issue, as it is originated from conflicts across constitutional competences, there is a tendency for the winner to get a substantial victory, with only minor issues being left to the opponent.

By “union” we consider every federal judiciary body (which is relevant, since in Brazil labor courts, military courts and electoral courts are specialized jurisdictions of federal justice), the President of the Republic as well as the National Congress, Senate and Chamber of Deputies, the federal prosecution agency – whether designated as Ministério Público Federal – MPF or as Procuradoria-Geral da República – PGR. The army, federal police, federal public foundations, federal public institutes, autarquias, public federal enterprises, federal public companies, federal regulatory and federal executive agencies were also considered as “union.” Exception was made for the so-called public and private jointly owned stock companies, due to specific constitutional provisions. National associations and labor unions were not deemed as “union” or “states.” However, when they succeeded, their victory was counted as pro-union or pro-state, depending on the scope and nature of representation. With the same reasoning, by “states” we consider every body of state judiciary, state prosecutors, state legislative assemblies, state public companies, and state police. Here, we should point out that in Brazil, there is no equivalent to the American Tenth Amendment immunity. Therefore, states and state governors can be directly sued in Brazil. For this research, municipalities were included within the state where they are located, for purposes of coding, as we did, for instance, in the decision: RE 361829, 12.13.2005.

This paper addresses in limine decisions as a generic term. For the purpose of our research, we disregard the distinction between liminar, tutela antecipada, and cautelar, despite the specific provision of article 273, §7th, of the Code of Civil Procedure. For references on those distinctions and further procedural specificities referring to claims against the government, see Cunha (2011:264–280).

The data for Figure 1 can be found on Table 8.

Notice that Justice state and Justice union are not mutually exclusive.

State connection is summarized on Table 6. It refers to the state where the justice was born and the state where the justice had her/his previous professional career (including where s/he went to law school). Notice that each justice can be associated with more than one state.

Notice that these four variables are not mutually exclusive.

We have mainly disregarded cases that address conflicts between federal and state prosecutorial bodies concerning powers and jurisdiction.