The ministers who most interrupted trials at the (Supreme Federal Court) were also the authors of the votes that most prevailed in non-unanimous court decisions from 2020 to 2022.
This is one of the conclusions of the master’s thesis in political science by Tailma Venceslau, researcher in the Judiciary and Democracy group, linked to USP, on decision-making time and interactions between the STF’s in-person and virtual plenary sessions.
The study showed a positive association between requests for review (more time to analyze the case) and requests for prominence (indication for the process to go to the physical plenary) and the formation of majorities in the respective judgments.
The data shows that the line proposed by authors of review requests prevailed in 69% of cases, while prominent applicants were successful in the decision on the merits in 61% of cases.
The analysis verified that requests for review and prominence did not produce a systematic effect of delaying judgments. On the other hand, these tools were relevant in cases of disagreement between ministers.
The trials that resulted in non-unanimous decisions took longer than the others, which allows us to assume that the use of interruption requests is partly responsible for the response time for these actions.
HAS Sheet Tailma Venceslau says that the association between interruption requests and the formation of majorities is not a problem in itself. Firstly, because there is no rule prohibiting the use of these powers for this purpose and, secondly, because there are arguments in favor of the measure.
“It can be argued that interruption requests are effective in forming decision-making majorities because they would extend the time for dialogue between ministers outside of virtual sessions regarding the legal foundations and scope of the decision. This can be seen as desirable in collegiate environments “, he exemplifies.
The database used in the research is made up of definitive judgments on the merits scheduled from 2020 to 2022 (1,925 cases), judged or suspended, as well as preliminary injunction referenda converted into decisions on the merits (12). In total, therefore, there are 1,937 processes.
The researcher states that ministers may request to be seen or highlighted for different reasons: to write a more consistent vote, convince colleagues, wait for changes in the composition of the court and even wait for a change in the political context. Motivations vary between individual reasons, coalitions of ministers and institutional issues.
The ministers who most used the mechanisms were , and . Those who did so least among the members of the court during the period were , and .
According to the research, success in non-unanimous scores suggests that the use of these tools may be associated with an assessment that it is worth its institutional and political costs.
The author of the study points out a possible reputational cost for the court in the case of paralyzing trials relevant to public opinion and a cost for the relationship between the Powers when trials of interest to political actors are postponed.
The study showed that the distribution of powers to start and stop judgments, on an individual basis, shapes choices about when to decide, especially during the agenda formation and judgment phases.
The formation of the physical plenary agenda is under the influence of the president, the rapporteur and the minister who requests a view. The rapporteur or minister who asked for more time needs to release the case so the president can call it to trial.
In the virtual plenary, it is different. A date is set as soon as the rapporteur releases the process. “The rapporteur is the actor with the greatest power over the PV agenda [plenário virtual]although other ministers, including the presidency, may compete for this position by asking for visibility or prominence”, says Tailma Venceslau.
There is a strategic calculation behind it. The minister may choose to interrupt the trial or use the agenda power as a response to the behavior of a colleague or even to anticipate the actions of another minister.
For example, the president of the STF, minister Luís Roberto Barroso, asked. Thus, he, who, according to the voting order, should have been the last to speak, voted in sequence, .
Interactions between ministers were not, however, the main cause for the longer decision-making times. The phase in which they do not occur was, as a rule, responsible for the longest duration of the actions: the instruction phase.
For example, the average duration of the request for consideration, according to the research, is 213 days, while the outstanding duration is 116 days, values much lower than the average duration of the due diligence phase (1,710 days).
The analysis of the relationship between the decision-making time and the parties to the processes indicated that those who waited least for a decision were the municipalities, and business associations.
On the other hand, those who waited the longest were the magistrates’ associations and , two categories linked to legal careers, which may contradict the expectation of a more corporatist treatment.
Congressmen, when they filed the lawsuits, waited much longer for the trial than when they were on the other side, on the side of the defendants. The result may indicate a willingness on the part of the Supreme Court to judge actions contrary to the interests of Legislative actors more quickly.
Even so, the speed of the trials was even in favor of senators and federal deputies. When observing the content of the court’s responses, 7 of the 10 judgments in these cases were to reject the complaint or dismiss it.
The study was not conclusive regarding themes. It was not possible to say that one was passed over in favor of the other and, on the same issue, ministers can behave in different ways.
