By MARJORIE C. MARONA*
Celso de Mello is this doyen: that of a Supreme Court that risked a leading role exercised, many times, at the expense of the legitimacy of the political system, and that now joins the coalition of democratic resistance in the face of a government that was gestated by the crisis policy that helped build
Celso de Mello retires next November after serving for over 30 years as a minister of the Federal Supreme Court. The history of Minister Celso de Mello in the STF goes hand in hand with that of the 1988 Constitution, not only because of the almost coincidence of dates between his appointment and the promulgation of the letter that inaugurated the most recent democratic period in Brazil, but also because of his performance marked by defense – described as intransigent by some – of individual freedoms.
Its tenure, however, elapsed in years in which not so much the exercise of constitutional jurisdiction, but, above all, the criminal competence of the STF characterized the court's protagonism. Celso de Mello became dean of the STF in 2007; the oldest member of the Court, in the year in which the judgment of Penal Action 470 – the monthly allowance – began. Understanding the performance of a minister beyond his decisions and votes, particularly the institutional performance of Celso de Mello, as dean of the STF, is not a simple task. Firstly, because an analysis of this nature cannot be easily captured by the available explanatory models, based on certain assumptions about the motivation of ministers and on the restrictions to their behaviors, which are not necessarily verifiable for the Brazilian context because they were forged in another – the US.
Furthermore, the motivation of ministers is conceived in terms of political preferences – fundamentally observable in their votes; and the restrictions to their behaviors are best understood in terms of game rules (in the field of formal institutionality). As a result, studies on judicial behavior focus on understanding the role of ministers in the records and shed light on formal institutional mechanisms that constrain/opportunize their performance.
Valuable works are known that pay attention to the individual powers of STF ministers, focused on setting the agenda, signaling preferences and, especially, decision-making. But they tell us little or nothing about the institutional performance of the dean of the Supreme Court. This is because the institutional position expressed by the Dean of the Supreme Court adds few prerogatives – unlike what happens with the President of the Court or the President of the Chambers, for example – so that understanding the institutional role of the Dean of the STF demands a relational approach, which incorporates the informal dimension. of negotiations, of interpersonal and political relations, presupposing the recognition of a kind of arendtian authority – the reciprocal recognition of their legitimacy.
Celso de Mello is recognized by his peers as a leader, which is no small task in a court in which each justice has exceptional powers, which can be exercised without much mutual or external control. Countless are the manifestations of colleagues recognizing him as a kind of “moral reserve” of the STF – the reference in difficult times, source of advice. The dean, therefore, not only leads the line of ministers when they enter the Plenary - one of the prerogatives dictated by seniority -, or enjoys the comfort of listening to the arguments of his colleagues before casting his vote. Celso de Mello has been active in leading the STF to the condition of a fundamental political actor in the recent history of the country.
And this story cannot be told without considering the exercise of the Supreme Court's criminal competence as a constitutive element of a specific strategy to combat corruption that had its institutionalization high point with Lava Jato. Well, the deanship came to Celso de Mello when the “big bang” of the Federal Supreme Court was under way: the monthly allowance trial, when the court framed, in an unprecedented way, political groups and actors, distancing them from retail actions that characterized the institutional dynamics of combating corruption until the beginning of the Workers' Party governments in 2003.
The monthly allowance placed the court at the center of public debate. After the monthly allowance, the STF was consolidated as “a vortex around which the conflicts of the institutional life of the country revolved”, (Recondo, Weber, 2019). Furthermore, the judgment of Ação Penal 470 is a fundamental event for understanding the processes of institutional change that the STF went through to become the court it is today. In this sense, Lava Jato can be considered, in the Court's trajectory, in line with the monthly allowance trial. And Celso de Mello, as dean, joined efforts, particularly with the presidents and rapporteurs who succeeded in the criminal trials for corruption that the STF began to host, to pave the way for the Supreme Court in the affirmation of its criminal competence.
As dean, he had a fundamental role in times of deep internal crisis that the STF went through, particularly as a peacemaker in the conflicts between the rapporteur and the reviewer of Penal Action 470 – justices Joaquim Barbosa and Ricardo Lewandowski. At Lava Jato, he acted in tune with the first rapporteur, Minister Teori Zawaski, with whom he held private meetings about the case; offering, more than once, its seal of approval for key decisions. In public, he spoke emphatically in favor of the operation. He was directly involved in the internal negotiations of the STF – and of the Court with the PGR – which resulted in the expansion of the perimeter of action of the biggest maneuver to combat corruption in the country, inaugurating a new moment in the correlation of forces in Brasília.
In November 2015, Zavascki ordered the precautionary arrest of then-senator Delcídio do Amaral, leader of the Dilma government, but not before negotiating the support of his colleagues, for which the intermediation of the dean was fundamental. The arrest of a parliamentarian under those circumstances imposed an operation of creative constitutional hermeneutics that was justified by the supposed need for a change in the institutional order of the country. Celso de Mello was not unaware of the controversies involved. In the judgment session in which the decision was endorsed, he used his institutional position to accommodate the points of view of the other ministers and make the decision intelligible to the public – using catchphrases and language that was more immediately understood.
Celso de Mello was contacted again by Zavascki, seeking the necessary support to remove Eduardo Cunha from the mandate and the presidency of the Chamber, which presented itself as an opportunity to replicate, on a larger scale, the Delcídio do Amaral solution. It didn't disappoint. The position of dean would also help him in the construction of solutions in the face of the moments of crisis that the death of Zavascki inaugurated in the STF of Lava Jato: Celso de Mello becomes a voice of authority in the face of theories, maneuvers and biased readings of the regiment in order to find the best way to replace the rapporteur.
At that point, the criminal agenda had already become an enormous source of friction between the Supreme Court and the political world, and it can be said that the dean was active throughout the process, although he was not always successful. Perhaps the most expressive case is the one involving the execution of a sentence before it becomes final, politicized due to the situation of former President Lula. Celso de Mello made an important intervention in order to avoid the wear and tear that the imminent clash between Minister Marco Aurélio Mello and then President Carmem Lúcia over the trial agenda would impose on the public image of the STF.
The dean suggested an informal meeting for the domestic negotiation of a solution in the face of the president's refusal to guide two Declaratory Actions of Constitutionality (ADCs) that replaced the question about the constitutionality of the prison in second instance, probably changing the recent understanding of the Court. Carmen Lúcia's rebellion resulted, alternatively, in the judgment of a habeas corpus filed by Lula's defense. The judgment of the concrete case, considering Lula's political weight, pressured the Court to maintain its recent position for the constitutionality of the arrest before the final and unappealable decision of the conviction. Lula remained in prison and the episode, in fact, eroded the public image of the court.
Celso de Mello lamented what he described as the politicization of the Court's agenda and reacted to information reported in the press that he had pressured then-president Carmen Lúcia to put the issue of the imprisonment of those convicted in second instance on the agenda, supposedly to favor Lula. In fact, even though the judgment em thesis (ADCs) could benefit the former president, by detaching the debates from his particular situation, Celso de Mello's trajectory definitely did not authorize criticism of partiality in favor of Lula. Conjectures about their political preferences the dean's performance seems to indicate, in fact, persistent efforts to expand the institutional role of the Court (when the context allowed it) and to defend its institutional place (when the situation began to demand it).
Currently, when one could already expect him to prepare his last acts in view of the imminence of his retirement, Celso de Mello has been reaffirming his institutional status as dean, particularly in defending the STF in the face of successive external attacks on the institution and its ministers. Faced with the inertia of Dias Toffoli, President of the Court, it was his initiative to react to the public demonstration of intimidation by General Villas Bôas, still in 2018. In a plenary session, he classified the pronouncement as inadmissible, strange and harmful to constitutional orthodoxy; a typical practice of a “praetorianism that must be rejected”. In another episode, when a reserve soldier offended Minister Rosa Weber, then president of the TSE, on social networks, Celso de Mello again went public, repelling the attacks, which he classified as filthy, sordid and disgusting. With that, he induced a network of solidarity among his colleagues, who decided to refer the case to the Attorney General's Office.
In the face of the virulent attacks that accumulated throughout Jair Bolsonaro’s campaign for the presidency of the Republic – and, once again, challenged by the silence of the presidency of the Court – Celso de Mello once again reacted. This time, he resorted to the press – which is not like him – to classify Eduardo Bolsonaro’s statement on the possibilities of closing the Supreme Court, “inconsequential and coup plotting”. Faced with the appointment of General Fernando Azevedo to advise the office of the president of the Court, Dias Toffoli, the dean was critical, although most ministers did not see any problem with the novelty — a military man within the STF.
Dias Toffoli anticipated Bolsonaro's victory and gave indications of a conciliatory dynamic, of dialogue, between the Court and the Planalto Palace, but the dean, in opposition, went on to assert his internal leadership against possible setbacks. He did so by adding to the authority of dean the prerogatives of rapporteur in the case involving the criminalization of homophobia. To guide this process would go against the political peace plans recently announced by Toffoli, but, as some ministers of the court say, Celso de Mello's request cannot be refused – and the dean formally did so. Celso de Mello then led the STF in guaranteeing support for the criminalization, through the courts, of homophobia, marking a position in the face of a new, more conservative Congress, but, above all, the extremely conservative customs agenda of the Bolsonaro government.
At the head of processes that are being processed in the STF and put the Bolsonaro government under suspicion, Celso de Mello has been expanding a front of resistance to the dismantling of the Palácio do Planalto. A curious fact is that one of these processes – precisely the one that opposes Sérgio Moro to Jair Bolsonaro, has been pointed out by specialists as a “trap” for the Federal Supreme Court, insofar as it reverberates the wild boar that captured the political moralization agenda in Brazil; that, in the jurisprudence of the Court, politics was criminalized; and who was the support base of the Bolsonaro government itself.
Celso de Mello is this doyen: that of a Supreme Court that risked a leading role exercised, many times, at the expense of the legitimacy of the political system, and that now joins the coalition of democratic resistance in the face of a government that was gestated by the crisis policy it helped build.
* Marjorie C. Marona is a professor at the Graduate Program in Political Science at UFMG. Researcher at the Institute for Democracy and Democratization of Communication (INCT/IDDC)
