THE RULE OF LAW: BRAZIL´S SUPREME COURT IS ON TRIAL / THE ECONOMIST

The rule of law

Brazil’s Supreme Court is on trial

How a superstar judge illuminates an excessive concentration of power

Brazilian democracy has taken a beating over the past two decades and much of the blame lies with its rotten politicians. 

Every president since 2003 has been accused of breaking the law. 

Dilma Rousseff was impeached for fiddling public accounts. 

Luiz Inácio Lula da Silva, known as Lula, was jailed for corruption and is now president again. 

Jair Bolsonaro, a far-right agitator, allegedly plotted a coup to stay in power after losing the election in 2022, and will soon be put on trial. 

But Brazil’s democracy has another problem: judges with too much power. 

And no figure embodies that more than Alexandre de Moraes, who sits on the Supreme Court. 

His record shows that judicial power needs to be pared back.

Brazil’s Supreme Court has inexorably gained clout and prestige as the executive branch has lost legitimacy and Congress has been mired in gridlock and scandal. 

Since ruling on a big corruption case in 2012 the court has become more willing to assert its powers. 

Mr Bolsonaro’s dangerous, anti-democratic behaviour, both in office and after being kicked out by voters, gave the court further justification to throw its weight around in defence of the rule of law. 

Mr Bolsonaro allegedly tried to declare a bogus state of emergency after losing the election, and his supporters assaulted government buildings and planned to attack an airport. 

The latest allegations accuse him of planning to assassinate Mr Moraes, as well as Lula and his vice-president in 2022, before they could assume office.

These are grave charges, and the court should weigh the evidence and convict if appropriate. 

The trouble is that there are mounting questions about the court’s own behaviour, the quality of justice it delivers and the appropriateness of its sanctions.

A panel of five judges will, for example, decide whether Mr Bolsonaro goes to jail, instead of the court’s full bench of 11. 

Of the five, one is Lula’s former personal lawyer and another is his former justice minister. 

The trial thus risks reinforcing the perception that the court is guided as much by politics as by the law. 

During Lava Jato (”Car Wash”), a gigantic corruption probe that ran through the 2010s, the court upheld jail sentences for dozens of politicians and businessmen found guilty of graft, but then changed its mind and nullified Lula’s convictions in 2021 on procedural grounds. 

In 2023 the court’s president boasted it had “defeated Bolsonaro”.

Claims of such arbitrariness and impropriety have become common. 

In recent years a single judge, José Antonio Dias Toffoli, has voided almost all the evidence uncovered during Lava Jato and opened a dubious investigation into Transparency International, an anti-corruption group based in Berlin. 

Gilmar Mendes, another judge, hosts a flashy gathering attended by the kind of high-powered people who often have business in front of the court.

Then there is Mr Moraes. 

He has led investigations into Mr Bolsonaro but is conflicted because he has been targeted by the former president’s smear and intimidation machine. 

He has also been waging a crusade against anti-democratic speech online, wielding astonishingly expansive powers, which has overwhelmingly targeted right-wing actors. 

Last year he ordered X, a social media-platform owned by Elon Musk, to take down hundreds of pro-Bolsonaro accounts, often without giving the account owners any explanation. 

He blocked access to X in Brazil for over a month and froze the bank accounts of Starlink, Mr Musk’s satellite-internet firm. 

Mr Moraes responds to criticism with imperiousness. 

Pressed last year about whether the court should adopt an ethics code, as the United States Supreme Court did in 2023, Mr Moraes claimed that “there isn’t the slightest need”.

In its defence, the court is acting legally. 

It gains its powers from Brazil’s constitution, which is one of the world’s longest, and lets political parties, trade unions and many other organisations file cases directly to the Supreme Court, rather than having them filter up from lower courts. 

This means that the Supreme Court in effect makes the law on issues that would be decided by elected officials in many other countries. 

A single judge can unilaterally pass rulings with serious repercussions, known as “monocratic decisions”. 

The Supreme Court often steps in because Brazil’s other institutions do their job poorly. 

Congress has long sat on a bill that would set clear rules for online speech. 

Instead, surreally, it is spending its time mulling legislation that would pardon those who attacked government buildings after Mr Bolsonaro’s electoral loss.

The threat from all of this is three-fold. 

One danger is that the quality of decision-making at the Supreme Court will deteriorate as its remit sprawls relentlessly. 

Second, the more the court seeks to manage politics, the more it loses public support: just 12% of people say that it is doing a “good” or “great” job, down from 31% in 2022. 

Third, such unconstrained power raises the threat of the court becoming an instrument of illiberal impulses that infringe liberty, rather than support it.

What can be done?

Part of the answer is for the Supreme Court to exercise restraint. 

To restore its image of impartiality, it should convene its full bench to try Mr Bolsonaro, including the two judges whom the former president appointed. 

Individual judges should avoid issuing monocratic decisions, especially on sensitive political issues. 

And once the trial against Mr Bolsonaro is over, Brazil’s Congress should wrest back the job of policing online speech from Mr Moraes. 

Brazilians have lost faith in two of their three branches of government. 

It is essential to avoid a full-blown crisis of confidence in the third.