The Federal Supreme Court is featured in political news, and this is nothing new. What’s new is that the spotlight is now on the erosion of its legitimacy. Opinion polls (, Quaest, Ideia, Atlas Intel) converge in pointing out the drop in voter confidence in .
The drop in confidence in the Supreme Court occurs amid complaints from or family members, and the difficulty in moving forward that imposes clearer limits on the actions of ministers.
The reputation of the Supreme Court is largely anchored in the image of an independent and politically neutral institution. It is precisely this image that supports the court’s legitimacy to make counter-majoritarian decisions and protect the rights of political and social minorities. But is the STF really fulfilling this role, or does its performance merely reinforce voters’ distrust?
I discussed the redistributive role of constitutional courts based on recent empirical evidence. The work used as a reference finds no correlation between the existence of judicial review and greater protection of minority rights, nor any systematic effects on economic growth.
Daniel Wang, law professor at FGV São Paulo, offers an important contribution to this debate by questioning the idea that courts would, by definition, be more technical, impartial or fair than the Executive and Legislative Powers.
When criticizing this idealized vision, Wang draws attention to a recurring problem: the comparison between the imperfect functioning of political institutions in the real world and an idealized version of the Judiciary.
Even though the courts are not irrelevant or necessarily harmful, their actions must be analyzed like that of any other political institution, subject to limitations, incentives and political pressures.
Political science has long characterized the Judiciary as another veto point in the decision-making process. And veto points increase the costs of implementing public policies, especially those of a redistributive nature.
I remember, for example, the 2014 preliminary decision by the minister that extended housing assistance to magistrates outside the salary cap, a measure that was only reversed after the Executive agreed to increase the salary cap and grant adjustments to the category, even in the midst of a scenario of strong pressure for spending cuts.
Courts with broad powers and growing protagonism end up assuming functions that are close to those of public policy makers, but lacking the expertise necessary to deal with complex budgets.
Although magistrates do not submit themselves to the scrutiny of the ballot box, they are also not immune to political pressure, whether due to their coexistence in small circles of power in Brasília, or due to increasingly plausible threats of impeachment.
In a context of growing distrust in institutions, expanding the role of the Judiciary without facing its limits does not strengthen democracy, it only displaces its problems.
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