There is a Judiciary that is united and another that is fragmented; one that stands out in a heroic story of resistance, another that stars in an infamous plot of perks; one that defends democracy and fights the pandemic, another that abuses the laws and weakens the rule of law.
The first is portrayed in the recently released “The Court – How the Supreme Unite in the Face of the Authoritarian Threat” (Companhia das Letras), by Felipe Recondo and Luiz Weber.
The second appears in the recently published “The Discreet Charm of Magistocracy – Vices and disguises of the Brazilian Judiciary” (However), by Conrado Hübner Mendes.
Not that there is no criticism in one case and praise in the other. Recondo and Weber, focusing on the STF (Supreme Federal Court), point out problems in both the decisions and the attitudes of ministers, while Conrado remembers that the Justice system is not just made up of defects.
But, in the excerpt of “The Court”, what we seek is to narrate the trajectory of a court that abandoned many of its internal divergences to face the external threat represented by the government of Jair Bolsonaro (PL).
Journalists Recondo and Weber draw on hundreds of interviews carried out over the last five years to reveal the behind-the-scenes of decisive events in the period, such as the Covid pandemic trials, the establishment of the fake news inquiry and the reaction to the 8 of January.
“When Bolsonaro was elected, we realized that there was something to be monitored: how the court would deal with that president who promised a relationship [com o STF] very different from what others have established?”, says Recondo.
The answer took a while to gain uniform contours. At first, the perception prevailed in the Supreme Court that Bolsonaro would be neutralized by the actions of the institutions, or that he would not follow through on his promises to interfere in the Judiciary.
The person who seems to have taken this position to a paroxysm was Luiz Fux, president of the STF from 2020 to 2022. In “The Court”, we learn that he only saw a problem around Bolsonaro, who “listens to the wrong people and ends up kicking the bucket.”
But not everyone believed that. According to what the authors learned from people close to Alexandre de Moraes, the current president of the TSE (Superior Electoral Court) made the following assessment in private conversations: “The ministers thought Bolsonaro was stupid, and so did I, but I never underestimated him.”
In June 2020, the situation had changed. With the exception of Fux, the other ministers already considered Bolsonaro a concrete threat, and several of them were carefully reading books about the weakening of democracy around the world and the new configuration of coups d’état, which does not require the use of tanks in the streets.
That month, the STF gave a clear demonstration of unity by approving, by 10 to 1 (Marco Aurélio’s defeated vote), the controversial inquiry 4,781, aimed at investigating fake news and threats to the court and its members.
From then on, especially in actions on policies to combat the coronavirus, the Supreme Court presented itself as a cohesive bloc, with decisions that contradicted Bolsonaro.
In parallel, STF ministers maintained frequent contacts with the military leadership – in particular, with the Army High Command – to probe the mood in the barracks in the face of a coup.
“The Court” indicates that it was this approach that gave the ministers the necessary strength to double down in the face of the most tense situations, as the ministers knew that the generals would not support a crazy adventure.
Edson Fachin, for example, after assuming the presidency of the TSE, in December 2021, sent emissaries to find out the disposition of the region commanders and discovered that none of them shared the plans against electronic voting machines.
Realizing that he was standing on safe ground, Fachin decided, in May 2022, to put aside diplomacy with the then Minister of Defense, Paulo Sérgio Nogueira, stopped answering impertinent questions about the polls and stated that the election was a matter for the unarmed forces.
Later, Moraes, now president of the TSE, did not mince words in a private conversation with the Minister of Defense. Faced with Nogueira’s questions about the possibility of installing a spy program in all polls, Moraes replied: “Hey, Paulo Sérgio, it could be that a meteor falls and destroys the Earth. Have holy patience”, says the book.
These actions, however, did not lead the STF to anticipate the harsh attack of January 8, and “The Court” shows how then president Rosa Weber made a point of guaranteeing a unitary institutional reaction from a court that, a few years before, acted almost always as 11 independent islands.
And “Onze Ilhas” is precisely the title of an article that Conrado Hübner Mendes published in 2010 and which now opens his new book, a collection of 88 texts published in the press, especially in Época magazine and in Sheeta newspaper for which he has been a columnist since 2019.
“The set offers a very didactic descriptive and analytical repertoire to problematize the Judiciary, the judges, the ministers. To think about the problems and factors that we need to debate in more depth for improvement”, says Conrado.
The book highlights topics such as the lack of harmony in the STF and the absence of arguments in decisions, but, mainly, the plethora of benefits to which judges are entitled.
Hence the neologism “magistocracy”, which mixes “magistrate” and “aristocracy”, evoking the idea of a toga caste that, according to the author, “makes mistakes, protects error and resists self-correction”, contributing to “serious comorbidities of democracy Brazilian”.
Conrado makes it clear that he is not just referring to judges; he uses the term in a broad sense, including prosecutors, prosecutors and public lawyers.
For the author, who is a professor of constitutional law at USP, the moment is opportune for the publication of the volume, not only because he felt the maturity of the arguments that have been refined over the years but also because the country is once again breathing political normality.
“This debate cannot be left off the agenda,” he says.