[RESUMO] From the 2010s onwards, the profile of the STF changed significantly. Presidents began to favor the appointment of names close to them, personally and ideologically, to the court, to the detriment of other necessary qualities. Thus, today we have a Supreme Court in which the majority operates politically, decides based on alignments with party groups and signals from the Executive and Congress. In the following article, authors analyze what happens when judges become perceived as interested participants in political disputes.
is not new: it consolidates a cycle. With the appointments of Temer, Bolsonaro and Lula, a new Supreme Court takes on clear features. A court whose center of gravity shifts decisively to the realm of politics, with judges thinking like politicians, acting on politics, and deciding based on their interpretation of it.
This is not the old distinction between more “technical” or more “political” choices, which is insufficient to explain the nature of the court’s decisions and compositions. Every appointment to the Supreme Court has always been and will be political, in several senses: by expressing a choice of which political and moral views should have a place in the court; as it results from calculations and possibilities of political support, within the dynamics of the governing coalition; for signaling, to voters, the priority of certain values and elements — such as gender, race, regional origin or religion — in choosing the nominee.
in turn, is necessarily a political actor, in several senses: due to the state authority it exercises when deciding; by the impact it has on existing laws and public policies; and for the choices that you eventually need to make in the many points of the Constitution open to divergences, which are also, ultimately, ideological and moral.
What is consolidated, with new clarity after the appointment of Messiah, is something different: a Supreme Court with a majority that operates politically. Who decides based on calculations and perceptions of day-to-day politics; who reads the signals from the Executive and Congress and is willing to respond to them in real time and outside the records, sometimes in meetings called for this purpose; who acts as another actor in the political dispute, and not as an arbitrator who distances himself from it in time and space.
Ministers with the capacity and willingness to act like this are nothing new. The transformation is not abrupt. It has accelerated since the 2010s, when the Court became accustomed to arbitrating political crises of all types, defining electoral rules, suspending laws in the heat of the moment and filling legislative gaps at the moment.
The recent composition deepens this expansionist vocation. Keeping the due and necessary differences, Nunes Marques, André Mendonça and Flávio Dino do not hide their pragmatic reading of the institutional game.
More than that, in this game they do not act based on convictions formed in isolation: they interact with the political scenario and its actors before, during and after deciding. They recognize politics, and are recognized by it as peers. Jorge Messias, if confirmed, will be part of this group.
This minister profile does not, in itself, constitute any type of abuse or excess. There are decisions that strain the separation of Powers, sometimes unjustifiably, taken by ministers with a profile more distant from politics; in the same way, ministers closer to the political game can be both restrained and aggressive when deciding.
There are justifiable and problematic decisions made by either of the two types of Supreme Court justices. The transformation we point out does not serve as an argument for those who accuse the court of trying to implement a “judicial dictatorship”.
In fact, it is the consolidation of a structure that already had pillars in other compositions, such as the appointments of (1997), (2002) and, more recently, (2009) and (2017).
Increasingly since 1988, we have had a Supreme Court encouraged by civil society to decide conflicts that divide public opinion. Parliamentary minorities, for example, turn to the court to reverse political defeats and, since the 2000s, even to take sole and definitive decisions on important decisions that do not advance in Congress. More recently, presidents call the STF when governability is at risk.
What these actors ask and expect from the court has changed: from a veto point to a rule maker; from last word to first decision maker on major — and sometimes minor — political issues; from judge of public policies to lifeline for politicians.
In this scenario, there were always ministers who felt more comfortable than others and encouraged the transformation that came from outside from within. For years, a group has emerged within the institution that sees politics as an inseparable part of the job, not as a limit or obstacle to jurisdiction. The judge’s direct and close relationship with the Executive and Legislative branches opens up more possibilities than threats for the exercise of judicial power.
The decisive criteria for nominations have been changing. In a court openly perceived as a player in day-to-day politics, nominations say more about who nominates (what do they want from the Supreme Court?) than about who is nominated (what did they do before arriving at the court?).
In the trajectory of the indicated potential, what is built at a distance from politics — academic production, professional past in the Justice system, public recognition for the ideas or causes defended — loses relevance. The trajectory within public administration, their achievements in the context of the governments they served, the trust they inspire and political affinity are more important.
Young age, therefore, stops being a problem and becomes an opportunity. The younger, the longer the nominee will remain in court as an interlocutor potentially open to dialogue. The cases of , and Jorge Messias go in this direction.
These changes bring costs and dangers to the court itself. Nominee and president become inseparable. The connection between them becomes the most important trait, overshadowing any other merits that the chosen one may have. Above professional qualities, the image of the minister who takes tubaine, the political ally, the friend of the government, the personal lawyer prevails in social perception.
The robe, of course, provides the institutional independence that judges need. But independence is also behavior: choosing not to care about what political allies expect and deciding despite what they want. Proximity to politicians can cloud, inside and outside the court, the vision of equidistance and independence that is expected from a Court minister.
The judicial authority conferred on the 11 ministers by the Constitution is also not capable, by itself, of distancing judges and politicians. When the Senate decides on crimes for which the president is responsible, it is exercising a judicial function, but its members continue to think and operate as politicians.
Likewise, the power that STF ministers exercise is not, in itself, capable of preventing them from thinking, operating and even deciding in a manner similar to politicians, even if the exercise of this power is accompanied by institutional characteristics associated with courts (such as the presentation of legal arguments to justify their decisions).
Judicial independence and authority do differentiate the Supreme Court, from the point of view of institutional rules. But its actual functioning — whether closer or more distant from the logic of action of the elected Powers — will also be shaped by the people under the toga. In recent years, the predominant profile has been that of ministers who are particularly familiar, close and comfortable with the logic of politics and with the politicians themselves.
This profile is not inevitable. In fact, it was not the rule for appointments during President Lula’s first two terms. In Dilma’s case, there was no indication of people close to the president’s politics or personal trust.
Votes from ministers such as Luís Roberto Barroso and Edson Fachin are shaped by public constitutional convictions and repeatedly exposed before they even take on the robe, in the Justice system and in academia. But this profile, which was never the general rule beyond Dilma’s case, abruptly lost ground. Today, it appears to be facing extinction.
The generation that reaches the Supreme Court, with Messiah included (being approved by the Senate), assumes the plenary with another individual predisposition and in another institutional environment. Now, judging is also governing; interpreting is also managing; deciding is also negotiating; Applying the rule is also evaluating its convenience or not.
The effects are profound. The Court begins to occupy institutional voids, but it also creates shadow areas for Parliament.
From society’s point of view, if everything can be resolved in the STF, it loses urgency and forces social pressure on the Legislature to deliberate and decide on the country’s many problems that require taking a position.
And, from an institutional point of view, when these issues are decided by a STF that is so comfortable with legislating and formulating public policies, there is increasingly less space left for Congress and the Executive. Pushed to court in this way, politics returns weakened and limited to elected representatives.
. A point that confirms the curve. His career was built behind the scenes of the State: lawyer for the Union, executive secretary of a ministry, key figure in PT governments with access to the highest levels of the Executive. A minister with experience in public administration under presidential leadership, fluent in the language of politics, comfortable with intervention in public policies and with strategic reading of the party environment.
This is someone who knows the machine inside out and, above all, has experience in real politics — that which involves negotiation, timing, reading Congress, understanding the cost and benefit of decisions, articulations, concessions and compromises.
This repertoire, increasingly common among the Court’s younger ministers, reinforces the profile of a Supreme Court who feels capable of acting as a legislator or executive. A Supreme Court that sees no legal reasons not to do this and, if it chooses to contain itself or remain silent, it is also out of calculation or prudence, not because it believes in the limits of the judicial function.
Therefore, Messias is an ideal minister for a Supreme Court that sees itself not only as the guardian of the Constitution, but as the country’s institutional manager.
Will a judge with this profile distance himself from the conflicts and needs of politics? Will a Supreme Court with a firm wing of ministers like this be less involved in the day-to-day functioning of other Powers?
Some ministers will establish stronger cooperation with this or that side of politics; others may try to build their own base of independent political support, to be relevant and able to promote their agenda whatever the government of the day.
From party politics to personal politics, there will be variations. But with a common theme. Constitutional jurisdiction does not disappear, however it becomes inseparable from politics and, in the worst case scenario, becomes its instrument.
Messiah’s nomination is more than a presidential choice. It is the consolidation of a Court model built by previous choices. A STF that has been abandoning any pretense of distancing itself from politicians and assuming that it has more similarities with them than differences.
A court that, when faced with issues involving legislative choices or partisan disputes, often does not ask itself whether must decide the topic, but when do it. And that, once in these discussions, he feels at ease, as if he recognizes that political power increasingly comes through the toga.
One of the many problems that this type of institution creates for itself is convincing people. And this danger has been fueled by the actions of the court and generations of its justices, appointed by presidents from all sides of the partisan spectrum.
The court being perceived as an essentially political actor has costs — for the institution and for each of its members. The great individual power they exercise should be publicly based on the authority of the STF as a court.
But what happens when the judge who intervenes in the political dispute is seen only as an extension of it? Even more so when the court often also decides the future of politicians in investigations and criminal actions. How does this affect the ways in which civil society, the legal community, and politicians themselves view and recognize the authority of this institution?
Their judgments, even those with which we do not agree, need to have the authority of a judicial decision, and not just another maneuver in the political arena.
