After growing with Bolsonaro, the role of the STF did not decrease with Lula

An internal survey carried out by the Open Court program, of the Federal Supreme Court (STF), revealed an increase in the court’s intervention replacing other powers since 2019, a date that coincides with the beginning of the government of then president Jair Bolsonaro.

The trend of advancement in the STF’s protagonism, according to the survey, has remained unchanged until the current moment of Lula’s mandate.

The survey sought to identify all decisions handed down since 10/5/1988 (date of promulgation of the current Constitution) “in which the Federal Supreme Court has recognized situations of unconstitutionality due to omission”. The concept means that, in the court’s interpretation, the Brazilian State would be constitutionally obliged to act on a certain issue and failed to act, making intervention by the STF necessary.

The targets of this type of decision are typically the Executive and Legislative branches; According to the survey, the Judiciary was targeted in only 4% of cases.

Decisions based on unconstitutional omission represent only a small fraction of the approximately 90 thousand decisions that the STF makes per year. However, they have a disproportionate share of the decisions that receive the most public attention and, given their nature, serve as a thermometer for the court’s protagonism in politics.

Increase in the Bolsonaro government

Of the 133 declarations of unconstitutional omission made by the STF in the more than thirty years of the Constitution’s validity, according to the survey, almost half (60) occurred during the Bolsonaro government (2019-2022).

Until 2019, there had never been a year with more than 8 decisions of this kind; During the Bolsonaro government, all four years of office had a number higher than this record: 11, 18, 13 and 18.

With the beginning of the Lula government, the pattern of increased intervention by the STF, to date, has been maintained, with 11 decisions of this kind having been recorded throughout 2023, the same number seen for Bolsonaro’s first year in office.

Covid-19 pandemic

The health emergency of the Covid-19 pandemic is sometimes cited as the cause of the tendency for exceptional intervention by the STF. Minister Gilmar Mendes, for example, in a recent speech, mentioned that the court “faced denialism in relation to the pandemic”, in an indirect reference to the Bolsonaro government.

The STF in fact declared unconstitutional inaction by the federal government in sanitary measures to combat Covid-19. An example was Original Civil Action 3,473, in which the provision of ICU beds was ordered in an injunction.

However, there were only 9 decisions of this kind among the 60 made by the STF during the Bolsonaro government, according to the survey data. In total, the pandemic was cited in one way or another in the summaries of only 16 of the 71 unconstitutional omission decisions handed down since 2019. One example was the Allegation of Non-Compliance with Fundamental Precept 635, in which police operations were prohibited in 2020 in favelas in Rio de Janeiro during the pandemic.

Therefore, Covid-19 is insufficient to explain the increase in declarations of unconstitutional omission by the STF, which have broken records since 2019 even when decisions that mention the Covid-19 pandemic are excluded from the sample.

Changes in the profile of decisions

In addition to the quantitative increase, declaratory decisions of unconstitutional omission have also changed in nature since the promulgation of the Constitution.

In the 1990s and 2000s, according to data from the Corte Aberta program, the most common topics of intervention by the STF included the organization of the State, rules on public servants and social rights, with emphasis on social security rights.

What these themes have in common is that they have detailed rules in the 1988 Constitution, including provisions that expressly ordered Congress to draft a law in the future clarifying the omitted points. This situation makes it more natural for the STF to find that the Legislative or Executive failed to comply with a constitutional command.

In contrast, since 2013, other matters, more openly regulated in the Constitution or not expressly mentioned in the text, have been joining the previous ones and gaining increasing prominence in declarations of unconstitutional omission. In particular, the rights of the accused or prisoners and causes linked to the minority agenda (women, blacks, indigenous people, quilombolas and groups belonging to the LGBT acronym) stand out.

Judicial decisions based on abstract constitutional principles, invoked to contradict the letter of the infra-constitutional law or to innovate in the legal order, correspond to one of the existing definitions for the so-called judicial activism.

Thus, data from the Corte Aberta program tends to corroborate the frequent statement, both among laypeople and scholars, of an increase in STF activism in recent decades.

Criminalization of homophobia and transphobia

An example was in 2019, when the STF declared that Congress violated the Constitution by not enacting a law criminalizing homophobia and transphobia, although the two terms do not appear, as such, in the constitutional text.

In the winning votes, an indirect reference was made to President Bolsonaro, who was then in his fifth month in office. Minister Luiz Fux argued, in his vote on MI 4,733, that, even if Congress approved a law on the matter – which, as he highlighted, it was not certain that Congress wanted to do –, there was the possibility that the then president would exercise the right to veto the proposal. If criminalization were carried out through the courts, this possibility would not exist.

In the parliamentary term that preceded his presidency, Bolsonaro had become notable for speaking out against LGBT issues in Congress and the federal government.

More interventionist stance of the STF

In judgments on the same topic, it is possible to see more clearly the change in the STF’s stance towards greater activism.

A famous example is the right to strike for public servants. The Constitution was promulgated with the provision that “the right to strike will be exercised under the terms and within the limits defined by law” (art. 37, VII), before which this type of strike would not be possible.

Given Congress’s delay in enacting the required law, the STF was approached to declare the existence of an unconstitutional omission; first in 1994 and, again, in 2002. On both occasions, he agreed with the authors of the request and declared the omission unconstitutional, but claimed the need for judicial self-restraint, in respect for the separation of powers. Therefore, he limited himself to “recognizing” the unlawful delay by Congress and “communicating the decision to it, so that it can take the necessary measures”.

In 2007, almost 20 years after the promulgation of the Constitution without the law being enacted, the STF was provoked again, but this time it gave a different response and replaced Congress in the task, dictating the rules to be applied.

Since then, as the data reveals, cases of declarations of unconstitutional omission with the occasional assumption of the functions of another power have only increased.