Supreme Court Dilemma – 12/11/2023 – Marcus Melo

“The price of the Supreme Court’s freedom is eternal public distrust regarding the formation of its agenda.” The statement is from Diego Werneck in “The Supreme Between Law and Politics”. If the STF dramatically expanded its scope of collective and individual action, the judges’ “procedural activism”, as Joaquim Falcão called it, undermines its legitimacy.

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. “In a court without limits, constraints, or clear criteria to explain its agenda, the doubt has become permanent.” Does the recent change to the rules limiting requests for review aim to contain the damage caused by procedural activism to the image of the court or does it target the individual actions of ministers appointed by Bolsonaro?

Much of the growing hyperprotagonism of the current Supreme Court was written in stone. Or rather, in the Constitution. The powers delegated to the court were vast. The list of those authorized to present demands directly to the STF was also extensive. Here is another contradiction: the gigantic liability of processes does not affect the freedom of ministers to choose what to prioritize. On the contrary, it provides a permanent alibi for discretion. This liability, instead of undermining your efficiency, empowers you.

It’s the high-voltage schedule that overwhelms you. No other court in history has faced: the trial of hundreds of defendants, from the country’s political elite (still in power) to the business elite; the impeachment of a president; the trial of another for common and electoral crimes; the containment of an illiberal populist. Here he had to choose the battle to fight, which led to abandoning the fight against corruption, and even increasing collegiality. In an unprecedented way, it became the object of violent attacks.

Judges who decide on these cases are empowered to decide on any other issues. They even practice what I called judicial amnesty: the exercise of an anomalous practice of ‘political pacification’. Controlling the STF has become the supreme political objective of political actors.

The strength of the court is significantly anchored in its criminal jurisdiction, especially over members of the two Houses of Congress (forum). And here lies a perverse balance that maintains the status quo. The Senate is responsible for selecting judges and controlling abuses. But senators have no incentive to exercise it over ministers who may become their judges. Unlike Madison, ambition fuels ambition, not opposes it.

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