The , reveals deep tensions within the court and points to the emergence of “judicial factions” within the court. “It’s getting really ugly, Fachin. Barroso didn’t like losing, but he was more elegant than you and recognized the result. You don’t: you’re a bad loser, you interrupt the game and take the ball home when you see that you’re going to be defeated”, Gilmar reportedly said.
The disagreement arose from Fachin’s decision to establish that petitions presented in cold cases must be previously validated by the presidency before being forwarded to the reporting minister. Unarchiving them would be a In the message sent to the president of the Supreme Court, Gilmar also accused him of acting as a filibuster — that is, an agent of procedural obstruction.
But the most relevant aspect is not the verbal aggressiveness —something not unprecedented in the STF—, but rather the nature of the reasons underlying the conflict. Tensions and animosities have already involved Gilmar himself in clashes with Joaquim Barbosa and Barroso. What is new are the antagonisms structured less by jurisprudential divergences or disputes over protagonism and more by interests linked to the heterodox pattern of extrajudicial action by ministers.
This is a set of practices that is quite peculiar to the Brazilian case in a comparative perspective: ministers with business activities, frequent participation in events sponsored by private actors, the presence of interested party lawyers at these meetings, public demonstrations outside the records and dense informal relationships with political and economic elites. Added to this are recent suspicions of serious irregularities associated with the Master case, which dramatically increased the
What we are observing is something different from the individualism that characterizes the STF — the recurring image of the “eleven islands”. The current situation suggests the emergence of intrajudicial defensive coalitions, articulated around the protection of individual interests and resistance to internal accountability mechanisms. In this context, the dispute over a possible code of ethics for the court acquires decisive importance, because it threatens precisely institutional gray areas that, until now, have remained relatively preserved from regulation.
The episode involving the rejection of Messias’ nomination to the STF was particularly revealing of this new dynamic. Here, the most important aspect was not the rejection itself, but the horizontal coordination between aiming at the future composition of the court.
The truly new aspect is not the existence of personal conflicts in the STF, but the gradual transformation of these conflicts into alignments associated with self-preservation. This is a new form of judicial politicization: less focused on the relationship between the Supreme Court and the political system and more linked to the internalization, in the court itself, of disputes about reputation, public exposure, accountability and ethical limits of judicial action.
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