Ash Wednesday at the STF – 02/11/2024 – Marcus Melo

Two events point to a resurgence of institutional pathologies in the STF that many expected to attenuate. Especially considering that recent regulatory reforms to contain the damage caused by activism signaled awareness of the problem.

I am referring to Dias Toffoli’s decisions canceling billion-dollar fines from large companies. This is an eloquent example of the procedural activism that Diego Werneck criticizes in his recent book “The Supreme Between Law and Politics”. His conclusion that “the price of the Supreme Court’s freedom is eternal public distrust regarding the formation of its agenda” could not be more accurate.

The increase in the scope of individual judges’ actions clearly undermines the legitimacy of the court. The case is particularly relevant in a context in which the Supreme Court has to deal with an explosive agenda involving the top brass of the previous government and the former president. The last thing the institution would need in a situation like this would be decisions of this nature.

If the STF, through the monocratic decisions of its judges, can decide virtually any topic at any time, the court will be seen by society as arbitrary and illegitimate. Decisions are increasingly questioned for their individual, political and strategic motivations.

The impact of this type of behavior does not only affect the legal community, which has shown great concern (I exclude interested parties here, who applaud it) but, above all, public opinion. And it is crucial as empirical studies demonstrate. There is a significant negative correlation in Latin America between attacks on supreme courts (impeachment of judges, CPIs, interventions, etc.) and the evaluation they enjoy in public opinion. See, for example, “Public Support and Judicial Crises in Latin America”, by Gretchen Helmke, who examined 472 cases of attacks on supreme courts in countries in the region (which I examined here). .

In normal situations, public opinion indirectly influences the decisions of the Superior Courts. This is what Lee Epstein and Andrew Martin conclude, in a classic work on 6,000 cases of confirmation or reversal of lower court sentences over five decades in the USA.

The study refers to a “normal agenda”, not hyperpolarized and high voltage, like the current one. Currently, the lack of legitimacy in the courts is unprecedented and could have far-reaching consequences.

There is a collective action problem involving ministers who maximize their individual interests while ignoring collective institutional impacts. To the carnival of individual decisions comes an institutional Ash Wednesday.

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