The rise of STF members to stardom could collapse the Brazilian Judiciary

Ministers of the Federal Supreme Court (STF) are becoming “party rice” in political events, television programs, celebrity meetings and even concerts by famous artists. The lack of modesty of the togados raises concern among jurists about the rupture of vital principles for Justice and democracy, such as impartiality, impersonality and independence of judges.

The tendency for magistrates to strut is not new in Brazil, but it has certainly intensified in the last four years. There are frequent participation in meetings of activist groups – such as Lide or the MST –, opinions on the most diverse subjects of public debate, indirect messages to politicians via social networks or through the microphone of journalists, and the dazzled relationship with figures from the world left-wing celebrities like Daniela Mercury, Caetano Veloso, Felipe Neto or Djamila Ribeiro.

Fame attracts media attention: TV shows have hosted ministers much more often than in the past. One parameter of how things have changed could be the number of participations in a historic Brazilian television program like Living Wheel, from TV Cultura. Until 2015, there was only one acting Supreme Court justice in the center of the circle: Marco Aurélio Mello, who retired from the STF in 2022, had been interviewed in 2012.

Between 2015 and 2023, seven programs have focused on ministers. Luís Roberto Barroso, Edson Fachin, Gilmar Mendes (twice), Marco Aurélio Mello (three times) and Cármen Lúcia were interviewed, the latter last week.

The magistrates also put aside the fear of being associated with political figures, and feel comfortable fraternizing with polarizing groups such as the MST or Lulism, as attested by several events in the last four months.

After Lula’s diplomation as president by the Superior Electoral Court (TSE), ministers Alexandre de Moraes, Dias Toffoli, Gilmar Mendes and Ricardo Lewandowski participated in a commemoration for the PT member at the home of lawyer Antonio Carlos de Almeida Castro, known as Kakay. In November 2022, Luís Roberto Barroso had dinner in New York with Cristiano Zanin, a lawyer who defended Lula in Lava Jato. More recently, Lewandowski has demonstrated his sympathy for the MST.

February report from People’s Gazette recalls that the Constitution prohibits judges from participating in “partisan political activity”; that article 4 of the Code of Ethics of the STF advocates, among the “ethical principles that guide the functional conduct of servants” of the Supreme Court, “impersonality and impartiality”, in addition to “political, party, religious and ideological neutrality”; and that the Code of Ethics for the Judiciary, published by the National Council of Justice (CNJ), states that “the magistrate is prohibited from participating in party-political activity”.

Pedro Moreira, PhD in Philosophy of Law from the Universidad Autónoma de Madrid, points out that there is “an express and quite obvious prohibition” on party-political activity, but it is expected that good judges want not only to comply with these rules, but to go beyond them. “There are also a series of ethical duties that any good judge must uphold: discretion, self-restraint, serenity. These are virtues that preserve impartiality and build the image that judges are truly independent of political power. When a judge comments on everyday politics, expresses opinions on controversial moral issues, is constantly present in the media or at events and lectures, he compromises this impartiality. That is: everyone becomes interested in how the magistrate lives or thinks. It erodes its legitimacy,” he claims.

In addition, as compliance lawyer Jorge Derviche Casagrande observes, the ban on “party political activity” encompasses much more than the mere ban on collaborating with parties. “It doesn’t just mean that the magistrate cannot be affiliated with a party. It means that he cannot enter into situations with a political-partisan nature, because he will already be violating a precept that exists in all countries of modern Western legal tradition, of the impartial judge”.

The natural consequence of acting against this principle, for Derviche, is the institutions’ credibility crisis. He also points out that, as the STF becomes a political actor, the lifelong nature of the position of minister loses its meaning. “The ban on participating in party-political activity serves not only to protect the magistrate, protect the image of the Judiciary, but also to protect our democracy and our republican system. The post of STF minister cannot become a political post, because it would be a lifetime political post. If we have a lifetime political position, we have a dictatorship. Every political office we hold has a mandate, because the will of the people changes, and we have to obey the will of the population. If we have politicians with lifetime terms, we have a dictatorship. Simple as that,” he comments.

Principle of self-restraint is despised by current ministers, say jurists

An important principle for the Judiciary, that of its self-restraint – that is, the attitude of avoiding involvement in matters that do not compete with it or that could hurt its image of impartiality –, has been despised by the current ministers of the Supreme, in the view of jurists consulted by People’s Gazette.

Adriano Soares da Costa, specialist in Electoral Law, points to the usual excesses in statements on political matters as a serious example of this lack of self-restraint. He cites minister Gilmar Mendes who, in 2015, called the plan of the PT in power “kleptocracy” in a seminar he attended; more recently, in 2023, the same magistrate defined Bolsonaro supporters as “people from the basement”. For Soares da Costa, the demonstrations are especially serious because they deal with political agents who are part of the power and will be judged by Gilmar Mendes in actions.

“Before, there was self-restraint by the ministers of the Federal Supreme Court. I am convinced that one of the key factors in the change in behavior was the introduction of TV Justiça [criada em 2002], with constant publicity of the judgments. This gave great visibility and exposure and made the ministers of the Supreme have a greater role. This is a unique situation in the world. I am not aware of, to the best of my knowledge, any constitutional court whose judgments are conveyed as ours are. This has an aspect of transparency, on the one hand, but, on the other hand, it has the aspect of very large exposure ”, he comments.

For the jurist, judgments with an emphasis on political matters, such as Mensalão and Petrolão, were, along with the television sessions, the trigger for the spectacularization of the STF. “Mensalão was perhaps the most covered by the media at first, but if we remember, this characteristic also passed to other courts, such as the Superior Electoral Court, whose judgments published had strong repercussions – one of them, for example, from the Dilma- To fear. Naturally, over time, this constant exposure of judgments turned into constant exposure of interviews, participation in journalistic programs to discuss current issues – even topics that would still be or will be judged by the Court. And ministers began to express opinions, even outside the records, before discussions in the Court’s own forum ”, he observes.

This does not happen in the country whose Court serves as an inspiration for the Brazilian one, the United States. “On the US Supreme Court, trials are closed. You are open to discussions, but what was fully discussed in court is protected. You don’t see clashes between ministers. Ministers do not participate in journalistic programs. There are historic programs in the United States, such as the 60 minutes [da rede CBS], and ministers do not participate. Public pronouncements by ministers are rare; normally occur at academic events on important legal topics, in which these ministers make very cautious presentations”, says Soares da Costa.

Influence on undercuts is already evident

One of the many problems with the transformation of ministers into media personalities is the influence it has on lower courts.

“If they see that the STF, which is the supreme body, is behaving badly, passing judgments on a case-by-case basis, manifesting itself politically, what can this spread? Generalized malpractice. In a little while, we will be able to see judges protesting together with MST people. And nothing can be done about it. If I am a landowner, how confident am I going to have that a judgment will be made impartially?”, asks Derviche.

For Pedro Moreira, another impact on lower courts tends to be “the general perception that everything is pure arbitrary will”. “It seems to me that this has tainted ordinary jurisdiction as well, even though I sincerely believe that ordinary justices have a much greater appreciation for self-restraint than the Supreme Court,” he says.

The influence that the ministers’ political positions already exert is clear in some groups and movements of judges. Magistrates from the Association of Judges for Democracy, for example, campaigned explicitly for Lula’s release in 2019. The bias is so evident that the association has its own label within the PT website for articles related to it.

“It is a typical example of an association that unites judges around political issues. So is this type of association legitimate? Is this type of content legitimate? Soon you will have an association of conservative or right-wing judges with any ambiguous name, because this ‘democracy’ [do nome ‘Associação de Juízes para Democracia’] it is a democracy ideologically rooted in left-wing values”, criticizes Soares da Costa.

“Well, if the judge thinks that his mister, his judiciary, is not being enough for an improvement in society, if he thinks that there should be demonstrations and political action, remove the toga. Live for political life. O [ex-juiz Sergio] Moro did that, got out of his toga. He went into political life. Judiciary activity and political activity cannot be reconciled”, he adds.

Like the British royal family, STF ministers became the target of gossip columns

By shamelessly seeking to play a leading role in the main political and social discussions, Supreme Court ministers ended up gaining a type of public attention unlikely for judges: they became characters in gossip columns.

In 2021, columnist Léo Dias, from the portal metropolises, reported the beginning of a romance between a minister of the STF and “one of the greatest icons of beauty in Brazil in the 80s”. “The two have been friends for a long time and, lately, work has brought them closer together. The friendship evolved into a relationship. They spent the October 12th holiday together in a luxurious hotel in São Paulo”, she wrote.

Internet users began to make assumptions about who would be the magistrate and model mentioned by Léo Dias. The rumor that minister Luiz Fux and model Luiza Brunet were dating spread over the internet. In 2022, Brunet denied the story in an interview.

Last week, the column “Observatório dos Famosos”, from the UOL, highlighted the presence of minister Dias Toffoli at a concert by singer Ivete Sangalo. “This columnist’s attention was drawn to the conversation in the magistrate’s ear with an unidentified brunette,” said the column’s editor.

Jorge Derviche parallels this situation with the interest that British gossip outlets have in the UK royal family. “They [os ministros do STF] are the new royalty. It’s like the tabloid relationship with British royalty. They are a new royalty, because they have lifetime positions and show that they have lofty powers. They do what they want, they become princes. They are the princes of Brazil. I am sure that our current President of the Republic cannot oppose them, just as the previous President could not. They rule Brazil, and now they are wearing the crown for everyone to see.”