Reform as retaliation

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By MARJORIE MARONA & FÁBIO KERCHE*

Is it time to discuss and propose changes in the composition of the STF?

The President of the United States of America, Joe Biden, created a commission to evaluate the Supreme Court of the United States and, backed by the victory in the elections, resume the discussion on his proposed change in relation to the mandate (which today is for life) and the increase in the number of justices (which today is nine), presented during the campaign. The current composition of the court tilts the balance between liberals and conservatives towards the latter, which puts it in virtual misalignment with the message recently given at the polls by voters who kicked former President Donald Trump.

Fears that the Supreme Court will overturn rights and make Biden's life more difficult in advancing a progressive agenda are not unfounded. Trump appointed, on the eve of the presidential election, Amy Coney Barrett, an ultraconservative, to occupy the vacancy opened by the death of Ruth Bader Ginsburg – a liberal giant, a feminist icon on the Court – and, with that, increased the conservative majority to six justices out of a total of nine.

It is ironic, however, that the United States, which has always criticized the reforms of the Latin American constitutional courts, pointing the finger at the governments that directed them, hastily characterized as “left-wing populists”, and denouncing supposed particularistic interests, are flirting with the simplest mechanism of court-curbing. This expression designates a practice of “retaliation” that consists of the approval of legislation that reduces the institutional capacity of the constitutional court, with a view to altering its composition, limiting its competence or jurisdiction, modifying internal procedures, reversing particular decisions, etc.

In Brazil, the most extensive reform of the judiciary took place in 2004, after years of progress, and analysts agree that the Federal Supreme Court was strengthened. Since then, here and there, discussions about possible judicial reforms come to the fore. There are, pending in the National Congress, proposals for all tastes, often activated at the whim of the political conjuncture, signaling dissatisfaction with specific decisions of the Supreme Court, usually in the face of issues of interest to the government. This is precisely what has been seen since Minister Roberto Barroso ordered the installation of a Parliamentary Commission of Inquiry (CPI) to investigate criminal actions or omissions by the federal government in the face of the COVID-19 pandemic.

Barroso's decision, giving rise to the most recent parliamentary attack against the STF, is not unprecedented. The court has already determined the opening of other CPIs: in 2005, that of Bingos, and in 2007, that of Apagão Aéreo. The current decision, however, served as a trigger for threats of impeachment of ministers of the Federal Supreme Court – who at this point did not spare anyone – and, more importantly, to resume the discussion on the need to promote changes aimed at reducing the individual power of ministers, reinforcing the collegiality of the court. in fact, the ministocracy, a term used by Diego Arguelhes and Leandro Ribeiro to characterize the STF's performance dynamics, promotes a real institutional disarray. This is because it makes the court super-countermajoritarian, in the sense that a minister can prevent a collegiate decision – strategically mobilizing a request for review, for example – or judge by the collegiate – deciding injunction and monocratically.

This is not to say, therefore, that possible proposals for reforming the justice system are a minor issue that does not deserve any attention from congressmen. The problem is that this agenda is rescued as an attempt at retaliation and not as a necessary debate with a view to improving the system. The STF doesn't help either, let's face it. Freed from any ties, ministers change positions on substantial issues and innovate in procedures at the whim of the circumstances, when they do not publicly manifest themselves without any embarrassment about ongoing trials and disputed political issues, adding more fuel to the fire.

In summary: the political conjuncture is, in almost all cases, the detonating element of reformist initiatives. Defenders of today's ministers are tomorrow's detractors. Recognizing, however, that the political conjuncture is a determining variable in the relative position of the Court in the face of the other two powers of the Republic, would there be another way, mode, time or space to guide judicial reforms, mitigating particularist interests, removing occasional reactions? In other words: is it possible to promote judicial reforms, in particular safeguarding the principle of judicial independence?

Judicial agents often mobilize arguments of this nature to resist changes, qualifying them as opportunistic, motivated by particularistic interests or conjunctural dynamics. This is a strategy that, it should be said, has been successful in Brazil, where changes are, as a rule, expansionist in the institutional capacity of the Judiciary. A good example is the exclusion of the Judiciary from the Bolsonaro government's recent Administrative Reform proposal in a fiscal adjustment plan that does not reach that power of the Republic.

Yet another important aspect of judicial reforms is the fact that, frequently, they are carried out by the judicial actors themselves, when not due to lobbying of its associations with the National Congress, directly through the exercise of its own jurisdictional and/or regulatory functions, in the alteration of its competence and powers to positively impact its institutional capacity. This is how the STF institutionally repositioned itself by exercising a secondary competence – the criminal one – gaining enormous centrality in national political life from its role in the Mensalão trial and, more recently, Lava Jato.

But are we trapped in a corporatist or particularist trap? If there will always be the conjuncture, how to mitigate its effects on the debate around the containment of judicial activism, for example?

In a political conjuncture of crisis, marked by constant institutional tension and democratic opacity, added to a social context of radicalization of the extreme right, the minimum conditions for carrying out judicial reforms to contain the STF are not given, which demand a broad and plural public debate. Under the government of Jair Bolsonaro, who from the outset established a relationship with the Supreme Court based on the threat of closure – “two corporals and a soldier” – it would not be too much to say that any proposal for reform will be nothing more than retaliation – at best for the formal and legal ways.

Faced with the dilemma between the necessary debate and the adverse situation, perhaps we can only wait for the re-establishment of a government and a truly democratic political environment so that a consequent judicial reform can be discussed. And let's keep watching what will happen to the Supreme Court of the United States. Who knows, maybe this will help break down the resistance of those who believe that, even in democracies, some are untouchable.

*Marjorie Marona is a professor of political science at UFMG.

* Fabio Kerche is professor of political science at UNIRIO.

 

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