Barroso in the presidency awakens fear of ideological anarchy in the STF

Minister Luís Roberto Barroso will assume the presidency of the Federal Supreme Court (STF) on September 28, with the retirement of Minister Rosa Weber. Barroso’s record of votes, pronouncements and interviews, considered by several jurists to be the most ideological member of the Court, has raised fears of the exacerbation of political activism and the growth of legal anarchy that further delegitimizes Congress as the author of laws.

In monocratic votes and decisions, Barroso is one of the ministers most engaged in what he himself calls “pushing history” and applying in the country what he defines as a “shock of Enlightenment”. It was his, for example, one of the votes for the decriminalization of marijuana, in 2015, in the judgment that recently returned to the Court. In the pandemic, he was the one who monocratically decided that the vaccine passport was necessary to enter the country, before confirmation by the plenary.

Outside the courts, Barroso has already opened up his political views and is responsible for some of the most controversial speeches ever uttered by STF ministers in Brazil. “We defeated Bolsonarism to allow democracy and the free manifestation of all people”, he said in July, at the 59th Congress of the National Union of Students (UNE) – an event in which his presence alone would be enough to raise doubts about his impartiality as a judge.

Last year, during the Brazil Conference, in Boston (USA), the minister said that “it is necessary not to overestimate the enemy” and assigned to himself the role of “pushing history in the right direction”. “We are very powerful, we are democracy. We are the powers of good and we help to push history in the right direction. Evil exists, we must face it, but evil cannot prevail over good” , he stated.

For Pedro Moreira, PhD in Philosophy of Law from the Universidad Autónoma de Madrid, Barroso’s view of the role of the STF necessarily implies the politicization of the Court.

“The idea that the constitutional judge must, in certain cases, ‘push history’, acting ‘in favor of the cause of humanity’ seems to me completely immodest and imprudent. It assumes that a set of eleven judges, much more than the members of parliament or the people themselves, is able to know exactly what the correct meaning of history is. In my opinion, a judge who acts under these assumptions cannot impartially exercise his function. Therefore, strictly speaking, it is a kind of of non-judge,” he comments.

Alessandro Chiarottino, PhD in Constitutional Law from USP, expects that political activism will increase with the next president of the STF. “Barroso proved to be one of the most activist ministers, even though he himself tried to place the responsibility for this activism on the Brazilian constitutional structure itself, saying that the Constitution, after all, gave the Supreme Court many powers, mainly through the possibility of judging actions direct,” he says.

For the jurist, Barroso was one of the ministers “who most strongly sought to refound our entire political-constitutional system on new bases” and what can be expected from his presidency is “very little of that self-restriction, of that self-restraint that should characterize the Judiciary “.

Barroso denies that activism is a problem at the Supreme Court

Judicial activism is one of the evils of the Supreme Court most frequently pointed out by critics of the ministers’ performance in recent years. Barroso denies that this is a problem in the STF. For him, what exists is only a “judicial protagonism”.

“There is a very mistaken perception that the Federal Supreme Court is extremely activist, that it invents legislation and produces decisions that bring legal uncertainty. I would like to say that none of that happens. And here it is necessary to distinguish and differentiate three terms that are very different indeed: one is judicialization, another is activism and another is judicial protagonism”, he commented in April.

Barroso will have at hand some important judgments on controversial issues, such as ADPF 442, which opens up the chance of decriminalizing abortion. For Moreira, the possibility that the next president of the STF will accelerate the analysis of this and other controversial issues in the field of customs is real.

“Barroso is known to be in favor of decriminalizing abortion. It is what he, I imagine sincerely, believes is best for the country. The question we have to ask is: why would it be legitimate for us, in such a morally delicate case, to submit to What does Minister Barroso think is best for the country? The Supreme Court, every time it abandons self-restraint and falls into the temptation of resolving something that is politically and morally controversial, increases the perception of its illegitimacy”, he comments.

In the jurist’s view, it is no exaggeration to say that the Presidency of the Supreme Court fell into the hands of the most ideological of ministers. “It is not an exaggeration for a very simple reason: basically there is no difference between Minister Barroso’s personal convictions and the way he interprets constitutional principles and values. To use a term familiar to jurists, the ‘moral reading’ he makes of Constitution is almost always identical to its own subjective moral reading”, he explains.

Former state deputy Janaina Paschoal (PRTB-SP), PhD in Criminal Law from USP, is more optimistic. For her, although Barroso is evidently in favor of causes such as abortion, his long experience as a minister may help him to bet on conciliation instead of guiding controversial issues.

“Although the minister is sympathetic to these causes, with emphasis on abortion, I do not believe that he will use his important position to implement them. I think he will be cautious, also because of the current moment. I am optimistic”, he says. “He is an experienced minister. The country needs pacification.

According to her, the recent controversy generated by Barroso’s speech about “defeating Bolsonarism” may end up, paradoxically, being positive in reducing the Court’s censorship impetus. “It might make him review this movement to curtail freedom of expression and demonstration”, she says.

“I imagine that, at this moment, it doesn’t make much difference who is the president, because, being Minister Rosa Weber or Minister Barroso, apparently both are in favor of the thesis outlined by PSOL in ADPF 442”, he says.

In the view of Tadeu Nóbrega, Master in Constitutional Law from PUC-SP, although Barroso has an ideological stance, what really allows a glimpse of a future of judicial activism is the current composition of the Court, more than its head. “What defines this is more the composition of the court, because the themes are taken to the Plenary, and less the performance of the president”, he says.

For him, if the judgment on abortion were guided by a president like Rosa Weber, it would also lean towards a decision against life. “I imagine that, at this moment, it doesn’t make much difference who is the president, because, being Minister Rosa Weber or Minister Barroso, apparently both are in favor of the thesis outlined by PSOL in ADPF 442”, he says.

Barroso’s ideological decisions

Votes, monocratic decisions and demonstrations in court reveal that Barroso is one of the most ideological ministers of the STF. See some of them:

• In 2016, when the First Panel of the STF revoked the preventive detention of doctors and employees of a clandestine abortion clinic in Rio de Janeiro, Barroso declared in his vote in favor of their release that the current Brazilian legislation on abortion is unconstitutional, by violating fundamental rights of women.
• In 2021, in a monocratic decision, Barroso determined that the presentation of proof of vaccination – the so-called “vaccine passport” – would be mandatory for travelers arriving in Brazil through airports. The plenary later confirmed the decision.
• During the pandemic, Barroso decided that judicial decisions to evict invaded areas, both in cities and in rural areas, were suspended. Even with the impact of the pandemic already reduced, in 2022, the minister extended the deadline for the decision. Then, in November, he determined that the invaded lands go through a negotiation with the invaders before being vacated.
• In 2022, Barroso appealed to the ideological thesis of structural racism to reestablish the mandate of Curitiba councilor Renato Freitas (PT), impeached after invading a church in Curitiba.
• During the elections, Barroso monocratically authorized mayors and concessionaires to offer free public transport in the second round of the election, without this constituting an electoral crime or impropriety. The magistrate accepted a request presented by the Sustainability Network.
• In August of this year, Barroso granted house arrest to a woman arrested in the act in the state of Pará with more than six kilos of “skunk marijuana”. The accused is the mother of two children under the age of 12 and resides in Paraíba and, therefore, the minister invoked article 318-A of the Code of Criminal Procedure (CPP), which allows the substitution of preventive detention for house arrest in the case of the accused is pregnant or responsible for children or people with disabilities. The measure, however, only applies to cases in which the accused has not committed a violent crime or a crime against her child or dependent.
• This year, during the resumption of the judgment on the decriminalization of marijuana – an issue on which he already voted in 2015 –, Barroso asked for the floor to affirm that there is not a “minimal invasion of the legislative sphere, of the sphere of competence of Congress” on the issue of drugs and that, “in many parts of the world, and not just in Brazil, this ends up being decided by the Judiciary”.