What explains the new standard of action of the Judiciary? – 7/2/2023 – Marcus Melo

“Xandão won.” Journalist Malu Gaspar’s tweet captures the public sentiment about the TSE’s decision on Bolsonaro’s ineligibility. It suggests personalization of higher court decisions –seen as vendettas– and, more worryingly, that the decision was overtly consequentialist. It is a truism that superior court decisions are latu sensu politics. I use the expression here for those that are not strictly anchored in what is previously established by law – and that aim at other goals.

In a positive analysis, there are factors that explain the hyperbolic pattern of action of the STF and, now, of the TSE.

I highlight here an aspect that is not among the “usual suspects”; it is not about judicialization of politics, individual procedural activism or usurpation of imaginary moderating power. These elements are indirectly present, but a decisive explanatory factor is that the STF and individual judges have themselves become targets of attacks. Then let’s see.

The reaction to Lava Jato and the unusual radical change in individual judges’ positions took place after investigations involving two judges involving Coaf, giving rise to the Fake News inquiry, which, among other things, censored a text from Crusoé Magazine on the subject. The attacks on the STF began even before the inauguration of the president through Eduardo Bolsonaro. Weintraub’s diatribes at a ministerial meeting and the episode of the rockets launched over the STF reveal the rhetorical escalation.

What’s more, the president himself asked for the impeachment of two judges and threatened to disregard the Court’s decisions. With Daniel Silveira, the attack and punishment take on an open form of vendetta.

All of this is unheard of. Nothing similar occurred during the episodes of confrontation in the Mensalão or Petrolão. The new protagonism of the Judiciary in the New Republic was fed by its performance as a criminal court and manifested itself in decisions on customs, etc. In it he acted as an arbitrator, not as a party. This explains, but does not justify, the STF’s new standard of action. It is not, therefore, a linear expansion of the judicialization of politics.

The TSE’s decision is hyperbolic not because Bolsonaro has not committed crimes (eg liability), but because, in the case of a specific case (event with ambassadors), it is disproportionate (as was Dellagnol’s). Rampant political consequentialism has consequences: it turns courts and the appointment of judges into an institutional free-for-all. In which only political and personal loyalty matter. The consequences of this “consequentialism” are already visible. Zanin’s appointment is the icing on the cake.

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