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Who are the conservative ministers who have been through the STF

André Mendonça é sabatinado na CCJ do Senado
André Mendonça, during a hearing at the CCJ do Senate

| Photo: Edilson Rodrigues/Senate Agency

At the end of a hearing for eight hours at the Senate Constitution and Justice Committee (CCJ), former Justice Minister and former Federal Attorney General André Mendonça was approved for the seat on the Federal Supreme Court, also receiving the approval in the House’s plenary, with 32 votes in favor and 32 votes against. Mendonça is the second minister to be appointed by President Jair Bolsonaro (PL), after Kássio Nunes Marques, and has a profile that, in many points, diverges from most of his court colleagues. A Presbyterian pastor, Mendonça declared before the CCJ that he intends to act without activism, in defense of religious freedom and the secular state, a combo that, added to the epithet of “terribly evangelical” attributed by Bolsonaro, frames him as a conservative jurist.

If the role of the new minister matches the speech at the CCJ, it can be said that Mendonça will be one of the first magistrates with these characteristics to join the Court since the redemocratization process, although the discussion on conservatism in the Judiciary Branch goes beyond the ideological sense: it is known, for example, that Minister Carmen Lúcia is a practicing Catholic, which she is not. prevented her from voting for the equivalence of homophobia to the crime of racism in 2010 – an agenda defended by progressives and, for many analysts, approved through judicial activism.

On the other hand, Minister Ricardo Lewandowski, who requested minor penalties or acquittal of the The defendants in the monthly allowance case were against the criminalization of homophobia and the permission for anencephalic abortion. In 2008, he also voted for the authorization of research with embryonic stem cells, provided that there was no destruction of embryos.

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“Being a conservative minister has nothing to do with political conservatism,” says Professor Rodrigo Valin de Oliveira , from the Federal University of Rio Grande do Sul (UFRGS). “It is a conservatism in terms of method, of legal hermeneutics. A conservative minister is one who respects the legal system, which has the Constitution at the top, followed by the ordinary laws established by Congress and the function of execution – the activity of judges and civil servants who carry out the law”, he explains.

Taking up this definition by base, count as predecessors of André Mendonça figures such as José Carlos Moreira Alves (768-2004), Paulo Brossard (1989-1994), José Francisco Rezek (1990-2003) and Carlos Velloso (1994-2004). “A conservative minister does not take an abstract value from the Constitution – that of equality, for example – and apply it according to his own will. Sometimes, faced with a vague form, the conservative will prefer not to act, so as not to launch a reckless interpretation and overlapping his own ideology to the law. He does not consider himself an unconditional creator”, completes Oliveira.

“Among these names, there is in common the unconditional adherence to the legal system. Although he was an engaged politician, Paulo Brossard always knew how to preserve a space of discretion for the legal entities. He understood, for example, that in an impeachment process the interference of the STF should be practically nil. Néri da Silveira had the same profile”, he explains.

This discrepancy between being conservative with regard to the legal function and the so-called “customs agenda” is what makes the Brazilian Judiciary impossible to explain itself in a simplistic way. Before Mendonça, the last minister to combine conservative action in both senses of the term was Carlos Alberto Menezes Direito (2006-2009). Appointed by former president Luiz Inácio Lula da Silva (PT), Menezes Direito was a practicing Catholic, and his fidelity to the legal system, however, led him to adopt positions understood as “guarantees”, which seek to maximize the rights of defense of the defendant. He was also a notorious opponent of the decriminalization of abortion, an agenda also embraced by Minister Eros Grau (2004-2019), another indication from Lula. Years after leaving the STF, Grau would even criticize his activism.

For the jurist Ives Gandra Martins, the debate about the ideological position of the ministers that make up the STF arose during the PT governments. “Until then, it didn’t make much difference whether the judges were on the left or on the right: all ministers decided according to what was in the Constitution. When the Court began to be occupied by ministers adept at neo-constitutionalism, or with legal consequentialism, this began to change, and judicial activism began to reveal their respective profiles”, assesses Martins. As soon as Mendonça’s name is ratified by the Senate, the new minister is expected to fulfill what he promised before the Chamber: full respect for the Constitution and the legal system that upholds the rule of law.

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