Public opinion matters to the supreme courts because their authority depends on a diffuse legitimacy that supports the willingness of political actors and society to comply with their decisions. The real institutional armageddon occurs the day after, when relevant actors begin to consider the “nuclear option” of not complying with court decisions.
Superior courts are, therefore, strategic actors, attentive to the reactions of the political environment. As they show, public support for supreme courts is not based on abstract principles. This is, to a large extent, instrumental support: citizens tend to support the court when they believe that its decisions favor them politically.
Thus, the support of sectors —certainly a minority— for judges who are the subject of appalling accusations in relation to the Banco Master scandal causes perplexity but can be explained, but not legitimized. Obviously I’m not referring to “bought public opinion”, but to hyperpartisan groups. However, even within the government and groups of its supporters, there is a certain instability in their positions. And this is explained by several factors, as we will see.
Research in 34 countries has shown that the judgment of supreme courts is typically conditional on support for the . In the US, support for the Supreme Court grew after Trump’s election among Republicans and declined among Democrats even before his confirmation. The pattern is clear: support for the courts depends on alignment with whoever holds the presidency.
In Brazil, support for the Supreme Court had a positive impact on democratization until Mensalão (2005-2012), when it radically changed its tone among the then government supporters, who began to trash the . The attacks intensify during impeachment. The signal changed again in the Bolsonaro government when these sectors saw opposition and started to support the court. And it was reversed without significant changes to its composition. The leitmotif: the STF abandoned the fight against corruption and chose another battle – the containment of the illiberal Executive, which generated an alignment between the STF and the current government. Among the Bolsonarist hosts, the STF began to be demonized. What’s more: the process becomes individualized: some of its members go from demons to angels. And now vice versa.
There are additional factors that complicate the expected pattern: the current scandal involves the STF itself and not – as typically happens – the government itself and its base. Apart from that, there is the fact that this is a corruption scandal and not a very controversial decision (like abortion). The topic of corruption became toxic and was banned in left-wing public opinion and in the government due to the Mensalão and Lava Jato. In the context of current political polarization in democracies, public support for due process in corruption cases in higher courts is intensely partisan, as shown. Again, there is a general pattern here, but it cannot be legitimized
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