Having assumed the presidency of the Federal Supreme Court (STF) on Thursday (28) for a two-year term, Minister Luís Roberto Barroso will face a set of challenges inherent to the country’s historical and political moment. Experts are unanimous in stating that one of the main ones will be to stabilize the relationship between the Judiciary and Legislative Powers.
The issue came to a head this week, with the response given by the Senate to the judgment on the time frame: to retaliate against the fact that the Court recognized the original right of indigenous peoples to their lands, parliamentarians rushed to approve a project that not only legalizes the time frame as well as brings other trinkets. In a concentrated effort and with agility given to a few agendas, the text was approved by the Constitution and Justice Commission (CCJ) and by the plenary in a single day, which meant that the rite was interpreted as a clear rematch to the STF’s position. The vote in record time is also added to the critical nods from different parliamentarians dissatisfied with the Court.
It is not new that ministers face criticism – often coming from the most extremist wing of politics, but not only from this group – that they are legislating in place of the National Congress. In addition to the reservations and delicacies that the issue inspires, the fact is that the challenge lies before the nose of the new president of the STF, who will now have to face the tension generated by the last chapters of the relationship with the Legislature.
For experts interviewed by the report, there is still no crisis status, but they are unanimous in stating that they see a conflict established.
Political scientist Grazielle Albuquerque recalls that the court is currently experiencing a historic time in which it was placed as an unprecedented target of the most prominent raids and antagonisms that emerged on the national political scene and jumped into the spotlight in recent times. The issue helped to reinforce the tension with the federal Legislature, where a group of Bolsonarists with a more belligerent profile constantly attacks the Court in a climate of little democratic disposition. In addition to the attacks from the extreme right, politicians of other ideological backgrounds also view some of the STF’s stances with reservations.
“That’s why I don’t think it’s a crisis, but depending on how things go, it could become one. I think we are experiencing a greater crisis. There is a crisis over the role of presidentialism in Brazil, over the role of institutions, a crisis of confidence in democracy. Therefore, it is necessary to realign the role of the Judiciary, the Executive and the Legislative, including to guarantee a return to support from part of the population for these institutions”, says the researcher.
The question touches on some aspects of the agenda presented by Barroso in relation to what the judge intends to put into practice. In his inauguration speech and also in interviews given in recent days, the minister said that he has a platform with three axes towards which he intends to direct the work of the Supreme Court in the next biennium: content, image and relationship. Regarding the first, he said he was concerned with the search for the protection of fundamental rights, the preservation of democracy and the improvement in the efficiency of the Judiciary.
“Every president of the STF tends to want to prioritize some agendas. The problem is that intervening events often occur that make life difficult for ministers”, says professor Pablo Holmes, from the Institute of Political Science at the University of Brasília (Ipol/UnB). He highlights Barroso’s liberal character on the economic agenda and also on the customs agenda, generally seeing the Supreme Court as a protector of individual rights and also as an institution that can advance the protection of new rights.
“But I think that his presidency will not be able to make this the main agenda, for a simple reason: we had the entire crisis of the Bolsonaro government, we have a political reconfiguration in the country and we had the January 8th attack, which, in my projection, will mark this year in the STF. We do not know how the trial of the crimes relating to the masterminds of January 8th, the financiers, will proceed. There are those who articulated politically, who led the movement. There are deputies, senators and high-ranking military personnel involved. This will not be easy, from a political point of view.”
The researcher sees the empowerment of more conservative groups – observed in recent years and also in the current Congressional legislature – as an obstacle to Barroso’s presidency. The segment mainly encompasses the evangelical, Bible and bullet groups, which places the Court facing a more adverse political configuration at this time. The context can generate moments of greater stress for the court due to the social panic agenda dictated by these groups.
“Bolsonarism has worked in recent times as an amalgam of conservative opportunists, and they can unite. Barroso will have this complicated agenda on January 8th and there are still issues that a guy like him would like the STF to move forward with, such as the issue of abortion, drugs and others. This could serve as an opportunity for the far right to attack the Supreme Court and try to weaken it. It is in the interest of several localized sectors of Congress to weaken the STF, even if they have different reasons”, examines Holmes.
Communication and relationships
Another axis that could become a major challenge for the new president of the Court is that which concerns the universe of relationships with other social sectors. In an interview with the Migalhas portal shortly before taking office, Barroso said that he sees, in terms of image, a Supreme Court that still communicates poorly with society and that needs to work on communication with different segments.
“I understand that he is correct in pointing out the challenge of improving communication, but we have to see exactly how he will define and operationalize this. If it is something to greatly increase the exposure of Justice, the result may not be the best, and this may even come at a price. If it is, for example – Gilmar Mendes always says this –, communicating to the population the contributions that Justice made to the realization of some rights during the pandemic and to the defense of democracy itself, I think it is an interesting path”, says the professor and researcher Fábio de Sá e Silva, from the University of Oklahoma, in the United States.
He sees risks ahead related to the minister’s personality characteristics, which could put some banana peels on those who are in charge of an institution like the STF. “Communication is a challenge for Justice. In the society we are living in, permeated by misinformation, it is a challenge that becomes even greater, but we need to see how he will face it. If you think it is increasing certain types of exposure of the Court or suddenly trying to simplify too much to the point of vulgarizing some important debates, I see a lot of potential for a trap if this is not done very well.”
In the same vein, researcher Grazielle Albuquerque believes that the aspect of communication and image needs to be considered carefully in the recently started management of the STF. “The question, for me, is: by exposing yourself, what do you want to show? Because it is one thing to show the Court’s actions trying to clarify what its functions are and another thing is for the Judiciary to continue to be seen as a political actor, for example. I say political in the sense that it is sometimes equated with Executive and Legislative”, highlights the researcher.
“From my point of view, I think this comparison is not good for the judiciary itself because the Judiciary is not an elective power. He is, by essence, counter-majoritarian. If it begins to be identified as a power that must respond directly to the streets, it loses its main characteristic, which is that it sometimes opposes the Executive and Legislative branches. Public opinion changes sides, and changes very quickly. If the Judiciary starts to ride this wave, it will start dancing”, adds Grazielle, suggesting that the context can generate legal uncertainty.
Analysts point out that Barroso’s media profile could also pose a challenge in itself. He drew attention, for example, to the party hosted by the Association of Brazilian Magistrates (AMB) on Thursday (28) night to seal the celebration of the new administration. The event brought together 1,200 people, was luxurious and far from the discretion generally expected of members of the Judiciary. The party attracted the spotlight of the entire national press, including a performance by Maria Bethânia, MPB icon, and singer Diogo Nogueira, with whom the minister risked doing a duet.
The following day, Barroso also held a press conference in which he commented on various topics, from the issue of legalizing abortion to the thorny issue of marijuana possession, including the January 8th attacks, the candidates for the vacancy that will be vacated by the minister Rosa Weber next week and also for her relationship with the Legislature. It is not common, in general, for members of the Judiciary to publicly comment on matters that are under judicial review.
For Sá e Silva, inserting the Supreme Court into an institutional reconstruction route is a task that requires a lot of political intelligence and moderation, which could be compromised in the case of greater impulsiveness. “He is a judge with a more proactive profile and has an excessive taste for the media. This creates a lot of risks. He can make mistakes like he did in the past – for example, the ‘lost, mané’ episode – at a time when things are very unstable and delicate. It is a negative type of exposure. In some cases, improving the Court’s image in society requires less exposure”, observes Fábio de Sá e Silva.
The new management of the STF is also faced with problems related to the Judiciary’s bad reputation in terms of remuneration. In April, the Federal Audit Court (TCU) endorsed a measure by Minister Jorge Oliveira that had suspended additional payment for length of service, the so-called “five-year period”, for members of the Federal Court. The slice had ceased to exist since 2006, when it was replaced by other benefits, and the TCU’s decision was preceded by a political tide in which an attempt was made to approve in the Senate a proposed constitutional amendment (PEC) that rescued the five-year period.
The momentary failure of the journey does not mean, however, that the problems related to the remuneration issue have ended there. A survey by the UOL portal showed that, in May this year, a total of 12,200 magistrates in the country received more money than STF ministers, whose salary is considered the ceiling for public service and is currently budgeted at R$41,650. 92. “Barroso could and should correct all of this”, comments Fábio de Sá e Silva.
As a rule, the president of the Court is also the person who presides over the National Council of Justice (CNJ), a body whose responsibilities include the search for best practices in the Judiciary. “It is also important to think that a better relationship with society can come from the CNJ, and not just the STF. The courts can, for example, offer better services and society can, from this, improve its assessment of the Judiciary”, says Silva.
Editing: Rodrigo Durão Coelho