Cortes Constitucionais e Supremas Cortes em tempos de recessão democrática

Abstract

This paper proposes to study how institutional attacks on the Federal Supreme Court (Supremo Tribunal Federal) have occurred in recent years. By analyzing the mechanisms used by political leaders to weaken and try to capture the institution, we intend to point out possible ways to correct weaknesses in its institutional design and make it more difficult for these attacks to succeed. We start from the assumption that the attacks against the Court are not a peculiar characteristic of the Brazilian scenario but are part of a global phenomenon in which Constitutional Courts and Supreme Courts suffer attacks by political actors to impede their performance as defenders of fundamental rights and as barriers against the abuse of political power. We understand that the onslaughts against the Judiciary that occur on the global stage have been repeated in very similar ways in different countries and have as their main causes both the crisis of liberal democracy and the advance of authoritarian populist rhetoric. In this sense, the attacks suffered by the Federal Supreme Court represent another example of the global phenomenon in which populist leaders take advantage of the crisis of liberal democracy to attack Constitutional Courts and Supreme Courts institutionally. Therefore, before dealing with the Brazilian case in detail, we will briefly address the scenario that justifies the crisis of liberal democracy, what populism is, and its effects on liberal democratic constitutionalism. We will then analyze how, nowadays, authoritarian leaders seek to subvert the democratic regime by using legal instruments and what are the possible advantages of institutionally attacking the Constitutional Courts and the Supreme Courts. Subsequently, we will map out, based on some examples from the international scenario, the main mechanisms used by these leaders to make it unfeasible for judges of these courts to act and the instruments used to allow the opening of new vacancies to appoint allied magistrates and capture the institution. After the analysis of the international scenario, we will study the Brazilian case and evaluate how the political crisis in the country brought deleterious consequences for the Federal Supreme Court, allowing several attacks to be carried out by the other branches against the institution. In the country, although the performance of the Court has become the target of criticism over the last decade (mainly due to the erratic performance of its justices and the excess of functions that the Court has), the situation became considerably worse with the election of Jair Bolsonaro as the President of the Republic in 2018, at which time the Court became the target of attacks calling for the closure of the institution and the dismissal of its justices. Therefore, we will point out, from a detailed analysis of the institutional attacks against the Federal Supreme Court, some weaknesses of its institutional design and suggest legal changes to make the Court less fragile to them.