The Eleven

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By Marjorie C. Marona*[1]

Comment about the book The Eleven: the STF, its backstage and its crises, by Felipe Recondo and Luiz Weber.

In the year in which the Federal Supreme Court asserted all its protagonism, built on the rubble of the Workers' Party governments, whose destabilization and ruin relied on the more or less active performance of its ministers, it was launched Os Eleven: The STF, its backstage, its crises, by Felipe Recondo and Luiz Weber (Cia das Letras, 2019).

The book, written by a journalist and a political scientist, presents a narrative that is as relevant as it is powerful. This is due to the intimacy with which they describe the daily life of the STF, which became the “vortex around which conflicts in the country's institutional life revolved” (p. 45). With an air of romance, the book links stories that structure a script virtually of political-institutional life in Brazil in recent years, based on the centrality of the Supreme Court and each of the ministers who passed through it.

Structured from well-accurate stories that spring from offices, elevators, corridors, parking lots, the authors unveil the backstage of the dome of the Brazilian Judiciary. They show the crises that were born, many times, from simple phone calls, from the moods of the members of the court, from fortuitous and reserved meetings and other events in which the relations of the ministers with each other are woven, with the Presidency, his most direct advisors, congressmen , journalists and other bigwigs from the country's political and legal elite.

The gears that move the entire scenario are also worthy of attention and the authors do not escape the potential and limits of the rules (formal and informal) that shape the recruitment and performance of Supreme Court ministers. That's how the "supremacy"is revealed"ministocracy” and the backstage of the STF is made the stage on which ministers debut.

The general public benefits from the reading that allows viewing the decision-making dynamics, from which analyzes dear to the agenda of the judicial politics in Brazil are confirmed or challenged. Nothing is left out: there is the debate on the organization of internal coalitions in the Court, the individual action strategies of ministers, the relationship with the press, society and public opinion, and the complex appointment process. “The path to the Supreme Court”, revealed in a separate chapter, shows that the appointment of a minister is a complex operation that consists, to a large extent, in the president's ability to anticipate the moods of Congress, dealing, at the same time, with the pressure from society, class associations, ministers themselves, and also considering other variables, such as age, career and region of the candidates.

Everything counts – from “minor political calculations, to small thanks, the president’s idiosyncrasies, to political marketing, to powerful sponsors, to the personal confidence of the President of the Republic in the person and not in the profile of who will be the judge” (p. 133) – point out the authors inviting us to broaden the analytical scope.

But they consider, on the other hand, the growing perception of the Planalto about the power of a STF minister's decisions to interfere in society, which accompanies the growing concern with the nomination process. There has been progress from the characteristic improvisation, for example, of the first nomination of Fernando Henrique Cardoso to the Supreme Court, “decided in a conversation of minutes” with Nelson Jobim, towards planning, which is remarkable in the choices made by former president Dilma Rousseff throughout his government.

The authors also reveal the lobbying strategies of the “supremables”, bringing to the scene figures who are, as a rule, disregarded in the most canonical analyses, centered on the individual capacity of the president, on the strengths of political leadership in Congress, on the influence of Ministers of Justice and legal elite actors to determine/influence the outcome.

Particularly, throughout the governments of former President Lula, in which the Court underwent a profound renovation, articulators linked to the private life of those involved appear – as is the case of the lawyer Guiomar Feitosa who undermined Gilmar Mendes’ resistance to the nomination by Dias Toffoli. Other less anonymous, more intimate advisers to the president, such as former deputy and lawyer Sigmaringa Seixas – considered the greatest archer of the post-1988 STF, a “kind of ambassador of the PT to the STF” (p. 159) – and the former -general secretary of the presidency, Gilberto Carvalho, also find recognition.

"That's going to be my boy at the Supreme Court." The reference to “the most predictable nomination of all President Lula's choices” (p. 152) for the STF – that of Dias Toffoli – fully illustrates the limits of the presidential nomination as a mechanism of interference in the work of the Court, when contrasted with the stance taken by the minister in various situations involving the interests of the Planalto, under the government of the Workers' Party.

The specialized literature accumulates evidence in this regard and the authors pay attention to at least one more exemplary case: that which involved feelings of misunderstanding and betrayal related to the appointment of Edson Fachin by Dilma Rousseff vis a vis his role in ADPF 378, proposed by the PCdoB – when, with his vote, he “opened the way to the impeachment sequence in the molds carved by Eduardo Cunha” (p. 271), and which sealed the divorce between the minister and the Workers Party.

“It's all Siguinho's fault” (p. 159) Lula joked when dissatisfied with a Court decision. However, as the authors tell us, his choices were always linked to a logic that privileged the opening of the STF to society to the detriment of the court's commitment to governance.

In addition to the extensive coverage of the most relevant issues involving the Supreme Court, there is a shrewd construction of its protagonism, linked to major judgments and attentive to the exercise of the Court's criminal jurisdiction, which marked its most recent “stardom”. The seventh chapter of the work is dedicated to “Mensalão”, which narrates the circumstances surrounding the trial that “marked a turning point in Brazilian politics” (p. 162). There we recognize a court already divided around the agenda of the moralization of politics that would change the path of the Supreme Court, putting it on a collision course with the political system, on the one hand, but in line with public opinion, on the other.

In Mensalão, a standard of coalition which would mark other actions involving high-profile corruption cases that would arrive at the court in the following years, opposing the self-styled “Republicans”, gathered around the criticism of “criminal guarantees in favor of corrupt people and powerful corruptors” (p. 165), to the antipodes, maliciously identified as the “Impunity Brigade”. And more: the moral aspects, which “were always present in the judgments of the Supreme” (p. 171) would unfold, from the judgment of AP 470, into an activity of constitutional hermeneutics based, in an increasingly insistent way, on constitutional principles that served “all type of political-judicial choice” (p. 171). The practice of common construction of voting strategies and behavior in plenary was also inaugurated with Mensalão, “which would later be reproduced in Lava Jato at key moments” (p. 166).

It is also recognized the strength of the rapporteur in the construction of the result of the judgment based on the narrative about the performance of Joaquim Barbosa, who made use of all the institutional opportunities that were presented to him to advance the punitivism agenda: from the omission of information to the support of his thesis about the scope of the privileged forum, as in the case of Cunha Lima (p. 175), to the “slicing of the vote” to allow the trial of the monthly allowance “to unfold in a didactic manner, enabling a better understanding of the chain of facts and the link between the various accused”.

This maneuver, by the way, inserted the trial into an evident “dispute for the engagement of the public” (p. 189), raising another set of questions related to the relations between the Court and public opinion. The rapporteur was then joined by chief justice: Ellen Gracie used her prerogatives to expedite the Mensalão case. In 2007, under her baton, the court's regiment was changed to allow the summoning of auxiliary judges of the ministers, affecting the dynamics of the trials. Sérgio Moro, the Lava Jato prosecutor/judge years later, “criminally advised Minister Rosa Weber” (p. 176) on that occasion.

With Mensalão, the STF embraced its political vocation through the far from discreet performance of its members. The ministers threw themselves into the public debate, interfered in the political situation and reacted to the inconsistencies of public opinion. But the peak of the Supreme Court's rise towards a new role, linked to its criminal competence, would consolidate years later, with its intervention in Lava Jato.

Two chapters are dedicated to the famous Operation designed by Sérgio Moro and Dalagnoll, corresponding to the reporting periods of Ministers Teori Zavascki and Edson Fachin, respectively. Both Lava Jato and other anti-corruption operations “which ended up in the Supreme Court are the result of the court that judged the monthly allowance” (p. 205), which saw the collapse of criminal guarantees associated with the agenda of moralizing the policy with recourse to a sort of hermeneutic activity anchored in the loose articulation of constitutional principles. The trend towards individualism and strategic mobilization of the bylaws and the growing concern with public opinion only grew.

The fatality of the death of Zavascki – the first rapporteur for Lava Jato in the Supreme Court – opens the book with the indication that the event generated dispersion in the court, profoundly altering the dynamics of internal alliances and dividing the plenary. Zavascki's skill had transformed Lava Jato into an opportunity for the Supreme Court to establish, once and for all, its “understanding of how to do politics and (about) the role of the judiciary in this process” (p. 53), consolidating a framework quite particular of Judicialization of mega-politics in Brazil.

In fact, the rapporteur, who led the change in jurisprudence in favor of the early execution of the sentence, expanded the scope of action of the “greatest maneuver to combat corruption in the country” (p. 48), determining the unprecedented arrest of a senator from Republic – Delcídio do Amaral, leader of the Dilma government – ​​in an “ingenious” solution to circumvent the constitutional limitation (p. 57). The following year, faced with the legal imbroglio that involved the line of succession to the presidency of the Republic (ADPF 402) and a dispute strategy between Eduardo Cunha and Dilma Rousseff was being made, Zavascki committed himself, once again, to the construction of an overwhelming majority that would supposedly remove the specter of “institutional weakness”, caused by the increasingly insular behavior of ministers.

Zavaski maneuvered, since reporting for Lava Jato, the shift of the Supreme Court to the “epicenter of the Republic's power system, making it the regulatory agency for crises and disputing media attention with Congress and the Planalto Palace” (p. 68). . With his death, in the midst of a work dynamic in which autonomous and independent ministers are capable of declaring war against each other, of making their own policy beyond the STF and of being guided by their own rules, the the inglorious task of the heir to the Lava Jato rapporteurship: that of rescuing some dimension of collegiality, in addition to safeguarding the legitimacy and authority of the court and preventing it from succumbing once and for all to the pressures of public opinion.

“It could be worse”, reacted Carmen Lúcia to the result of the draw that determined that the new rapporteur for Lava Jato would be minister Edson Fachin (p. 110). The assessment of the then president of the STF was that the rapporteurship by a minister manifestly for or against the Operation could erode the legitimacy of the court, compromising its performance and institutional position. She wasn't mistaken. The independence and legitimacy of the court largely determine its institutional capacity. And to the institutional guarantee of independence (lifetime, irreducible salaries, etc.) widespread public support, because, after all, if institutions matter, it is expected that they influence the final perception of judicial independence. It is not enough to be independent, it is necessary to appear independent – ​​and this seemed to be the case with Fachin.

But if the “outline” was decided by external pressure, in what it was possible to maneuver, in relation to the choice of the new Lava Jato rapporteur, the ministers had already acted. “Mendes suggested that the president sponsor a game of chairs” (p. 113) in order to avoid the lottery; the president herself thought of appointing dean Celso de Mello, with the same objective, but it was Fachin who, “in a solo flight” (p. 117) put his name under eligibility conditions, when requesting transfer from the First to the Second Class, where the next Lava Jato rapporteur would come from.

As rapporteur, Fachin accelerated the investigation: at once, he opened 38 investigations that put “the country's top political echelon under investigation” (p. 129). But a leak to the press would seal the animosity between the president and the Lava-Jato rapporteur – in a different picture from that of Mensalão, in which Barbosa and Ellen Gracie were more in tune. The episode wore Carmen Lúcia out in general. His internal leadership capacity was already quite fragile. The “skillful direct connection with public opinion, often built at the cost of fraying his relations with ministers (whether exposing colleagues in plenary, or failing to comply with agreements signed behind the scenes)” took its toll (p. 120).

Several are the passages in which the authors associate the growing role of the STF with the continuous exposure and strategic mobilization of the media by the ministers. More or less supporters of the resource, all ministers seem to be clear about the potential of articulation with the press for the construction of their individual strategies in the conduction of personal agendas, conformation of internal coalitions, but also, reinforcement of their capacity of resistance in face of alleged interference by the other two powers of the Republic, where actors with real powers of retaliation are allocated.

And so it was that, entangled by the pressure of public opinion, the “court exposed its level of institutional fragility in a prosaic fact” that “would start to echo the voice of the streets in the chorus of fight against corruption” (p. 317), the one that involved “the seesaw of jurisprudence on the provisional execution of the sentence” (p. 319). The “sum of the features and vices that made the Supreme Court today – the court's almost discretionary powers over its agenda; the exacerbated individualism of its members; the vacillating jurisprudence (...); distrust among judges with the consequent fragmentation of the collegiate; the indications that judgments are contaminated by political dispute; the clash over the role of the Supreme in the fight against corruption (whether judge or sheriff); the inability to produce institutional solutions to their problems; deference to public opinion; the power that the President of the House has to put a process on the agenda or not (without any external or peer control); the judicialization of disputes that should be fought in politics” (p. 318) – sounded the alarm about the possibility of “praetorian interventions” (p. 326).

No accident The Eleven ends where it begins: in the present. “I thought I would be arrested”, exaggerates Minister Luís Roberto Barroso, in an outburst after a tense meeting at the Presidency of the Superior Electoral Court (TSE)” (p. 15), when considering punishment for his impertinence given the critical tone of his statements to the soldiers present. Dias Toffoli, on the other hand, perhaps anticipating the prominence that the Armed Forces could gain in the face of Bolsonaro’s victory, appointed “the four-star general Fernando Azevedo to his advisory” and some time later, when opening the judicial year, he invoked the mission for himself. as a moderator between the Powers, delivering a conciliatory speech and promising institutional discretion (p. 329).

But it was with his hands away from his chest, poetically denoting the distance between intention and gesture, that Toffoli himself guided, at the request of Dean Celso de Mello, two processes that dealt with the criminalization of homophobia, out of tune with the music that “proposed to orchestrate in the relationship with the Executive and the Legislative” (p. 331). And so it was that the Supreme Court began 2019 – the first of the Bolsonaro government and the year of launching The Eleven - with the challenge, far from simple, of preventing its independence from being questioned/attacked in the face of a democratic recession that it helped to build, acting at the whim of the political situation in previous years.

*Marjorie C. Marona is a professor at the Department of Political Science at UFMG.

Notes

[1] Thanks to Fábio Kerche for carefully reading and criticizing the preliminary version of this text.

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