Judiciary reform has become an inevitable theme for the election campaign and for the next government after the . Left, right and a divided (Federal Supreme Court) are now disputing what will be the extent and focus of this agenda, but the proposals presented (or lack thereof) reveal contradictions and conflicting interests with the public discourse of each group.
The right has been harshly criticizing the Judiciary for years, but to this day, it remains unclear what this reform would look like. Two points tend to stand out in the speeches: the limitation to individual decisions by ministers and the possibility for Congress to revoke judicial decisions understood as activism, when they contradict parliamentarians.
(), pre-candidate for the Presidency, even mentioned the creation of mandates as a possibility. But it seems unlikely that, if elected, he will give up on installing an ally in the Supreme Court who could remain on the court for decades after the end of a possible government.
The next president will have the right to nominate at least three STF ministers, to replace Luiz Fux, Cármen Lúcia and Gilmar Mendes, who will leave due to compulsory retirement by 2030. The new trio can guarantee a majority on the left or right in the court for years, depending on who is elected.
The opposition’s real plan is for ministers like and , which would open up space for even more nominations and serve as a warning to their colleagues about the risks of going against conservative movements.
More than structural changes in the Judiciary, the right wants to frame the STF, which stopped the Jair Bolsonaro government and .
This intimidation strategy was focused on a right-wing campaign to elect a comfortable majority in the , which has the power to remove ministers. The Banco Master scandal, however, amplified this battle and turned it into a theme of the presidential campaign as well.
From the left, based on a trigger pulled by José Dirceu, to combat “corporate privileges”, “self-correction and accountability in the Judiciary”, similar to the code of ethics proposed by the president of the STF, Edson Fachin. The party’s program targets the Judiciary to target anti-system voters, dissatisfied with corruption.
The PT speech contrasts, however, with the need that the president (PT) will have in a possible fourth term to once again count on the Supreme Court as an ally.
It was the court that secured his government against a Congress in which the PT member has minority support, and gave him the conditions to govern with one and the resumption of the decree that increased the IOF (Tax on Financial Operations).
The PT will be pressured to deliver some change in the Judiciary in 2027 to meet popular desires, but the extension may be far from what could be considered a reform. Not surprisingly, the party listed it in its new program as the fifth item of a broader set of six structural changes, following changes to the banking system and a “technological reform”.
The perimeter of the reform is also in dispute within the Judiciary itself. Edson Fachin wants to leave the code of ethics as part of his legacy as president of the STF and chose Cármen Lúcia as rapporteur, at the time when she instituted rules of conduct in the Electoral Court.
The group threatened by the accusation opposes Fachin and has resisted the code of conduct for months, but realized that some reform will be inevitable with the left’s adherence to the agenda that was already defended by the right. The strategy changed and started to include an expanded debate, beyond the ethical agenda.
It was up to Flávio Dino —who is an ally of this group, but had no revealed connection with the Master— to take the initiative to structure the Judiciary.
With an article on the internet and also judicial decisions, he has sought to take the STF out of focus by emphasizing problems that affect the lower layers of the Brazilian judicial system more, but are equally popular flags, such as the end of penduricalhos and compulsory retirement.
