The Supreme Court crisis operates on two distinct levels. The first involves individuals: conflicts of interest, violations of decorum, suspicions of corruption. There is a continuum here that goes from anti-republican “pecadillos” to serious denunciations. The second level is deeper: it concerns the institution as such. Here it is no longer just about personal conduct, but about your standard of action and relationship with other Powers.
Today it is possible to identify three large classes of problems associated with the degradation of this standard. The first is procedural exceptionalism (erosion of traditional guarantees of due process, for example in the fake news investigation). The second concerns deviations in the defense of democracy (political punitiveness, freedom of expression). The third involves the political hyper-protagonism of the Judiciary.
The Dosimetry PL partially responded to one of these dimensions: the issue of punitiveness (excessive penalties). In a way, part of the political system sought to reduce the intensity of the conflict. Yes, ministers from the Supreme Court themselves publicly acknowledged possible exaggerations in the cumulative nature of criminal types and the severity of certain punishments.
But precisely for this reason the center of the controversy will shift to the expansion of the court’s criminal jurisdiction over public debate, political contestation and the new imperial protagonism of the Supreme Court. The decisive problem is no longer just “how much to punish”, but what the institutional limits of exceptionality are.
The central point, however, is that the resolution of individual deviations and the institutional crisis of the court are deeply intertwined. And this intertwining is not accidental: it is permanently demanded both by ministers directly affected by the accusations and by the most radical opponents of the current government who supported institutional rupture measures. Lava Jato and “Xandão’s” acts and decisions became rhetorical screens.
The dilemma is that the way out of the crisis requires precisely the radical separation of these two dimensions. Problems linked to the individual conduct of judges need to be treated as issues of individual accountability. Dilemmas relating to the defense of democracy, the scope of judicial power and the limits of exceptionality must be faced as institutional and constitutional issues. Mixing both produces a corrosive effect: any institutional criticism is perceived as a personal attack; and any investigation involving ministers becomes a dispute over the survival of democracy. is marked by self-sabotaging ambiguity: sometimes it is corporate defense, sometimes it is the individual defense of a minister.
The problem is that the fake news inquiry itself was born from this original fusion between the two sets of questions. Its establishment was linked to threats against the court and individual ministers, in a context in which complaints involving names from the Supreme Court appeared associated with Odebrecht spreadsheets. From the beginning, institutional protection of democracy, serious individual deviations and the use of exceptional investigation instruments were confused. Here’s the dilemma.
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