The new STF may be even more activist than the current one

The judicial activism of the Brazilian Federal Supreme Court (STF), which has had repercussions even in the international press, can become even more extreme, depending on the outcome. of the presidential elections this Sunday (2). With the retirement of Ricardo Lewandowski and Rosa Weber – who complete 75 years during the next term – the head of the Executive will have the task of appointing, at least, two new ministers to the Court, already in 2016. This means a Supreme Court a little more to the right (if not more conservative), in the event of Bolsonaro’s re-election – whose promise is to nominate two names that “will never be in favor of abortion” – or even more progressive, if Lula wins the election.

Although the two ministers on the verge of retirement were nominated by PT presidents (Rosa Weber was nominated by Dilma Rousseff, in 2011, and Ricardo Lewandowski, from Lula, in 2006 ), Lewandowski, for example, voted against abortion in case of anencephaly, in 2006. At the time, he stated that any decision involving a topic of such relevance and complexity should be preceded by a broad public debate and submitted to the scrutiny of the National Congress. According to experts heard by Gazeta do Povo, however, the tendency is for new appointments from the left to the STF to take a stand less conservative on issues dear to the population, such as abortion, gender ideology and drug decriminalization.

“We have an extremely politicized Supreme Court, marked by the judicial activism, which should be restricted to what is brought to it in terms of constitutionality or not of the laws. However, the Court opens investigations, promotes investigations beyond its scope, is the author, investigator and judge of the case. This is all obvious, there is no way to hide the militancy of the STF. Even the New York Times, which is a progressive newspaper, recognizes this”, contextualizes civilist and social security lawyer Afonso Oliveira, a member of the Brazilian Institute of Law and Religion (IBDR).

“Suppose President Bolsonaro is reappointed, he will have the opportunity to appoint two more technical judges, and the STF will have four judges with a more conservative profile, more to the right, judging according to the law and the law. Constitution. Despite not forming a majority , we will already have a greater balance, because today the Supreme Court is mostly progressive and political, with nine nominated by left-wing presidents and Marxist ideology”, analyzes Oliveira. “Suppose Lula wins, the next two nominees will follow the same line as those who have been there for a long time. And I believe that we will have consolidated the intervention of the Judiciary in the other powers”, predicts the lawyer.

The professor of Philosophy of Law André Gonçalves Fernandes, who is a postdoctoral fellow in Philosophical Anthropology and in Philosophy and History of Education, recalls how more conservative appointments to the United States Supreme Court resulted in the recent reversal of Roe v. Wade, who legalized abortion nationwide in 2006. “We saw that with Trump, in the nomination of Brett Kavanaugh, Neil Gorsuch and Amy Cony Barrett, who made it possible to change Roe v. Wade, something I never imagined would be reversed,” he states. “If formed by serious people, these Courts have the sensitivity to understand the feelings of the people and the rectitude to observe the climate, the situation, even if they decide otherwise. So, in theory, if candidate A or B wins [para a Presidência], yes, change [esse cenário]”, completes.


Among the agendas currently being processed in the STF is the decriminalization of abortion up to three months of gestation, whose rapporteur is Minister Rosa Weber. The request was sent to the Court by the PSOL, on 2017. Currently, abortion is typified as a crime by the Penal Code, with a penalty of up to three years for those who abort and up to four years for those who help in the procedure. Punishment is not applied in cases of anencephaly, rape or risk to the mother’s life.

On the one hand, Bolsonaro has always made his position clear opposed to abortion, in April of this year, Lula declared that “everyone should have the right” to it, positioning himself in favor of legalization. “Here in Brazil they don’t do it (abortion) because it’s forbidden, when, in fact, it should be turned into a public health issue, and everyone has the right and not be ashamed. I don’t want to have a child, I’m going to take care of not having my child, I’m going to discuss it with my partner. What doesn’t work is the law requires that she needs to take care of it”, he said.

In the month following the PT statement, a survey carried out by PoderData showed how Brazilians feel about the issue: 20% of the country’s population is against the liberation of abortion in Brazil, a rate 4% higher than that recorded in the first month of the year. The share of citizens who said they were in favor of allowing abortion in the country was 24%, even percentage recorded in the previous survey. Those who did not know added up 12%.

“This election is of great importance, perhaps the most important in the last years of our republican history. left and have a socialist regime, as some countries joined: Chile, with the proposal for a new Constitution, Argentina, which will beat an inflation of more than 59% per year, Colombia, which abolished police forces and legalized drugs”, adds Afonso Oliveira. For the lawyer, two more conservative nominations can help achieve a “greater balance in the debate and in decision making” in agendas that are in the STF, “such as abortion, decriminalization of drugs, gender ideology, family and education”.

Laws open to further interpretation

Fernandes warns that, if in the past, the function of judging was limited to a application pure and simple from the written law to the specific case, in the last 20 years the laws have more clauses open, allowing the judge’s discretion [liberdade de optar por uma dentre várias soluções válidas perante o direito]. “That’s great. But a problem of Analytical Philosophy entered the Law and, with that, not only these open clauses, but legal concepts centered on a tradition of two thousand years from scratch started to be re-signified. This temptation strikes a lower court judge, but much more so a Supreme Court. In this broth, the judge’s temptation to ‘rewrite the Constitution’, without constituent power, is enormous”, warns the professor.

Based on the “last votes of the Supreme on matters of national interest”, in which “only the two appointed by the current president [os ministros Kassio Nunes Marques e André Mendonça] remain”, Fernandes believes in a decrease “in the risk margin of rewriting the Constitution”, in case of reelection and appointment of two more ministers of the same profile. “It will demand a more qualified majority, because today it is thrashed. Theoretically, it hampers the judicial activism of the STF, which will have more ministers opposed to this practice, not only authoritarian, but abusive and undemocratic”, he defends.

A turn in the Supreme Court’s position, as seen in the US, however, “is a construction” , ponders Afonso Oliveira. “In a first term, two ministers are appointed, in the second two more. From here 12 or 16 years, continuing this right-wing bias in the Presidency, there will be the opportunity to nominate others, because there are more ministers who complete 75 years in the coming years”, he projects.

“The modus operandi in politics, as in community life, is progress in some issues and setback in others. Everything is a process. There are only sudden changes in institutional ruptures, such as coups d’etat or revolutions. The continuous positivist progress is a myth, under normal conditions of temperature and pressure it is all a process”, adds André Gonçalves Fernandes.

Model similar to the American one

Specialist in Constitutional and Civil Law, lawyer Miguel da Costa Carvalho Vidigal is critical of the appointment system of ministers to the STF, “almost a copy” of the US system. In Brazil, according to article 75 of the Constitution, “the Federal Supreme Court is composed of Ministers, chosen from among citizens over thirty-five and under seventy years of age, of notable legal knowledge and unblemished reputation. The appointment is made by the President of the Republic, and the choice must be approved by an absolute majority of the Federal Senate. The term lasts until the minister completes 75 years of age.

“This is not very common in other countries that are examples in the world of Law, such as Italy, France and Germany for example. This form of choice has proved to be inapplicable in the country. In the USA itself, it proves to be complicated, see this modified abortion decision, which dated from 2006. See how long it took for the Supreme Court to understand to correct a mistake it had made and still not completely corrected”, he exemplifies.

“The lifetime did not do the Brazilian justice any good, add to that the increasingly strong judicial activism in the country, we have the STF today, one of the institutions that is one of the least admired by the public”, he argues.

Vidigal believes that models such as some Europeans, with a term of office for a limited time, with no possibility of reelection, and a composition that is more technical than political, would provide a Court with “a more real update for the moment of democracy”. “It cannot be left to the president alone to choose, with the ratification of the Senate – in Brazil, it was not ratified only once [desde a criação do STF em 1890, apenas cinco indicações do presidente foram derrubadas pelos senadores, todas em 1894, no governo do marechal Floriano Peixoto]. Especially because in the Brazilian electoral system, if you ask 3 million Brazilians if they voted for who they wanted, 2997 millions would say ‘I voted for the least worst’”, he criticizes.

“If minimum requirements were applied for the position of minister of the Supreme Court, it would be more beneficial for the country. It would also be important to have impediments, such as the person not having held the position of minister in the last ten years, because politics ends up being in that position, and this helps him to be approved. The person is not chosen for technical ability”, says Vidigal. STF Minister Alexandre de Moraes, for example, was Minister of Justice and Public Security of the Temer government, in 2017.

More impacts of the elections

The lawyer Afonso Oliveira recalls that, in addition to nominations to the STF, the president-elect also has the power to appoint judges and judges in the Superior Court of Justice (STJ) and in the Federal Regional Courts, which are the second instance of the Brazilian Federal Justice. “The court that has the most impact is the STF, but the others that form the appeal levels of the judiciary will also have a great impact”, he recalls.

In Oliveira’s opinion, this weekend’s elections could also result in a “more balanced Senate”, with a stronger base for the government and the “unclogging of dozens of complaints against STF ministers”. “The prime minister who is tried by the Senate, even if his impeachment is not confirmed, will have received the message that the Senate is observing and determines the constitutional limits for the performance of these ministers. The mere fact of opening lawsuits like this is a clear, republican signal that the Judiciary can do a lot, but not everything”, he reinforces.

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