Separation of powers

What to expect of Brazil’s Supreme Court in the Bolsonaro administration?

Brazilian top court could lose authority if it doesn’t take up a “rebel” stance, experts say

Court is expected to support the government’s economic agenda while drawing the line when it comes to civil liberties
Court is expected to support the government’s economic agenda while drawing the line when it comes to civil liberties - Agência Brasil

During Brazil’s 2018 elections, a video leaked showing Eduardo, one of the sons of the then presidential candidate Jair Bolsonaro, arguing that it would take no more than “a soldier and a corporal” to shut down the Supreme Court, which caused discomfort to members of the country’s top court.

Recently, the current chief justice, Dias Toffoli, has spoken about forming a “national pact” to push reforms, including the pension reform, and leave the Supreme Court out of the “political” conversation. Meanwhile, he also sparked up the debate around the top court’s ruling about the criminalization of homophobia, a topic that is still pending and ticks off one of the political-ideological backbones of the Bolsonaro administration: the Christian fundamentalist caucus.

Experts told Brasil de Fato that the Supreme Court will have to balance its moves in the next four years so as not to create tensions with the Executive branch while also keeping some kind of autonomy, the former being more important than the latter.

Frederico Almeida, a political science professor at the University of Campinas (Unicamp), points out that the Supreme Court has been part of the political conversation in recent years. He believes the time judge Cármen Lúcia served as chief justice, between 2016 and 2018, was “a disaster” and “hurt” the image of the high court.

Almeida believes Toffoli’s recent statements seem to avoid confronting the government, not discussing controversial topics, or not taking the government by surprise when these topics surface. The top court does tend to have different opinions on the government’s agenda.

“They will try to mediate and be favorable to the government in general, especially when it comes to criminal matters and economic reforms. On the other hand, they may try to set some limits when it comes to fundamental rights and basic freedoms,” the expert says.

Three examples of this attempted balance are, respectively, the “anti-crime” package devised by the Justice minister, Sergio Moro, the proposed pension reform, and finally, academic freedom in schools and universities and the possibility of criminalizing homophobia.

In this sense, regarding civil liberties, Renan Quinalha, a Law professor at the Federal University of São Paulo, believes the recent victories of LGBT people in Brazil are not threatened, at least right now, as the Supreme Court is not likely to engage in other fronts of tension.

Quinalha says that the Supreme Court’s previous unanimous or majority opinions in favor of same-sex marriage and trans people’s rights, for example, make it very unlikely that the justices will not respond if Bolsonaro tries to pass a law against them. “The Supreme Court will have to take up a rebel stance, otherwise it will lose authority.”

Armando Boito, also a political science professor at Unicamp, argues that Brazil’s top court has been under military tutelage since last year, when the armed forces unequivocally came back to the political game.

Boito recalls an episode on Apr. 4, 2018, when an army commander publicly bullied the Supreme Court to reject a habeas corpus plea filed by former president Lula. “That’s unthinkable in a bourgeois democracy. In the Bolsonaro administration, they [the military] are increasingly controlling [the power],” he argues.

Edited by: Pedro Ribeiro Nogueira | Translated by Aline Scátola