Congress tried to limit STF in 2023; what to expect in 2024

Ironically, it was in 2023, with former president Jair Bolsonaro out of power, that Congress managed to move forward with proposals to limit the power of the Federal Supreme Court (STF). The biggest opponent and critic of the Court in the political world, Bolsonaro even reduced and mitigated negative comments about the court – largely due to the investigations he is the subject of due to statements considered “anti-democratic”.

On the other hand, the increase in the conservative bench and the growing discomfort of parliamentarians, including those from the center, with the excesses and abuses of ministers forced the Legislature to react. It was in this context that in September the Senate’s Constitution and Justice Committee (CCJ) approved, in less than a minute, a proposed constitutional amendment presented in 2019 that prohibits individual decisions by ministers that suspend rules with general effect approved by Congress or edited by the Executive.

An example of this occurred with the State Law, which since 2017 prohibited politicians from taking over the management of public companies. In a stroke of a pen, in March, minister Ricardo Lewandowski suspended this rule, allowing the new government, led by Luiz Inácio Lula da Silva, to place fellow PT members and members of other parties that supported him in Congress in the state-owned companies. The decision only began to be analyzed by the STF plenary in December, but a request for review postponed a final and definitive verdict on the matter.

As shown by People’s Gazette, several of Bolsonaro’s policies would have been maintained, at least for longer and without any hiccups, if the ban on monocratic decisions had been in force during his mandate. Opposition to “lockdowns” during the pandemic, facilitating access to weapons, limits on censorship on social media, greater rigor in the demarcation of indigenous lands and the appointment of a director of the Federal Police are striking examples of presidential acts suspended on an individual basis by STF ministers.

But in addition to this history of setbacks on the right-wing agenda, the start of the trial that could decriminalize abortion, the resumption of the action that could decriminalize the possession of marijuana for personal consumption, and also the decision that put an end to the time frame for demarcation of indigenous lands. In November, with the support of the president of the Senate, Rodrigo Pacheco (PSD-MG), the House approved, with 52 votes in favor and only 18 against, the PEC that prohibits monocracies in actions of concentrated control of constitutionality. STF ministers protested, but Pacheco shrugged his shoulders.

The PEC arrived at the Chamber at the beginning of December, but until today it awaits an order from the President of the House, Arthur Lira (PP-AL), to begin its processing at the Constitution and Justice Commission (CCJ). The deputy has another bill up his sleeve, drafted by minister Gilmar Mendes, who maintains his and his colleagues’ monocratic power in the Court, and which has already begun to advance. The same project limits the parties that could join the STF with actions to overturn laws: the 12 smaller parties in Congress, which do not comply with the barrier clause, would be left out. Today, in practice, the measure would benefit the Lula government, which would not have the same headache as Bolsonaro with the actions of dwarf parties that reach the Court.

Therefore, the prospect is that the Monocratic PEC will not advance in the Chamber, due to resistance from Arthur Lira. The same tends to occur with another initiative, now from deputies, to investigate in a Parliamentary Commission of Inquiry (CPI) violations of fundamental rights and guarantees and due legal process, as well as acts of censorship and abuse of authority allegedly committed by STF ministers and the Superior Electoral Court (TSE).

The formal requirements were met – support from 1/3 of the deputies, a specific fact and a specific deadline –, but to this day Lira has not proceeded with the installation. Again, the proposition must come up against Gilmar Mendes, who has always been against this type of initiative. In 2019, he endorsed the filing of the request to install the Lava Toga CPI in the Senate, which would also investigate ministers for acts that could constitute conflicts of interest. It was based on the STF’s own jurisprudence that prevents the investigation of judges due to their decisions.

Since taking command of the Chamber, in 2021, Lira has maintained a close relationship with the STF. Since then, he has managed to file investigations against him in Lava Jato in court; in September, Gilmar Mendes closed investigations related to alleged deviations in the purchase of robotics kits for municipalities in Alagoas that targeted some of his allies.

In 2024, another proposal that could advance in the Legislature, with Pacheco’s support, is the establishment of mandates for STF ministers. It would not apply to current members of the Court, who would remain there until they were 75 years old. But, if approved, it would be another message to the Court that its decisions have been troubling, not only due to the judicial activism of some ministers, but also due to their increasing interference in political issues. An example of this is the pressure that usually applies to the President of the Republic and the Senate itself to nominate and approve names of personal preference for positions in the Judiciary and the Public Ministry.

The most recent case was the appointment of Flávio Dino to the STF and Paulo Gonet to head the Attorney General’s Office (PGR), with the direct participation of Gilmar Mendes and Alexandre de Moraes. The latter, as president of the TSE, had already managed, in May, to appoint two allies to the court: Floriano de Azevedo Marques and André Ramos Tavares, whose names he himself announced, before the act was formalized by the Presidency of the Republic.

Other than that, statements by ministers against Bolsonaro and his political group and in favor of Lula and the progressive agenda, under the discourse that the current president would honor democracy, consolidate the perception of persecution of conservatives and opposition to their agendas. Furthermore, it is increasingly clear that Lula is seeking a political alliance in the Court to compensate for difficulties or reverse defeats he may have in the Legislature.

Inside the court, the assessment among ministers is that the growing dissatisfaction of parliamentarians and society is mistaken. The STF’s disapproval by 38% of the population, measured by Datafolha in December, is attributed to a negative campaign against the Court promoted by Bolsonaro, who blames the Supreme Court for hindering his government. The ministers deny this, arguing that they acted to preserve fundamental rights and protect institutions. Hence the interest in combating what they consider “fake news” against the STF. On another front, Luís Roberto Barroso, president of the court since September, has made an effort to better clarify the court’s decisions to avoid negative interpretations.

Given this scenario, what to expect for 2024?

For political analyst João Henrique Hummel, the containment of the STF by Congress is a path that has begun and there is no return.

“The ‘start’ has been given. The way the Legislature was placing the Executive in its role of executing, I think they have now started with the Judiciary. And once it starts there’s no going back. And the one who has to give this ‘start’, started to do it, which is the Senate, which has the power to approve an impeachment of STF ministers. It never happened, but it had also never happened in Brazil against a president. After the first, there were several”, the analyst told the program Capital Matter.

For him, the political world understood that “hitting” the STF gives you a vote. And so there would be a chance that Lira would not be able, in 2024, to hold back the momentum of deputies who want to change the STF, with the Monocratic PEC. The municipal elections anticipate, to a large extent, that parties will arrive strong in 2026, when the Chamber is renewed.

But Congress’s reaction does not only occur in projects that directly affect the STF. It can also materialize in the approval of proposals that reverse Court decisions. Pacheco has already launched a PEC to make it clear in the Constitution that carrying drugs for consumption is a crime – something similar will probably happen if the STF moves forward with the trial to decriminalize abortion.

Soon after the STF extinguished the time frame, the Senate approved the criterion into law; Lula vetoed it, but Congress overturned the veto. On the 22nd, the president admitted that the way forward is “to fight in court again, because we don’t have a majority [no Legislativo]”. The government, through the Attorney General’s Office (AGU), must ask the STF to overturn the law.

For Hummel, it is something similar to what happened with the vaquejada. In 2016, the STF overturned a law in Ceará that regulated competitions, on the grounds that they caused suffering in animals. In response, Congress enacted a constitutional amendment in 2017 to once again allow these events to take place. There is already a new action in the STF to overturn this amendment, but its judgment has been postponed.

The most extreme measure, the impeachment of a STF minister, however, is a dream of the right that is still distant. The cold shower came in the vote on the nomination of Flávio Dino for the STF. Despite a great mobilization of parliamentarians to reject his name, even promoting protests of his own, he passed with 47 votes in favor and 31 against. An impeachment of a minister would need a reverse score: with at least 41 votes in favor, in addition to the willingness of a Senate president willing to open the process. Therefore, one of Bolsonaro’s priorities, in the 2026 election, is to expand his base in the Senate.