O Supremo Tribunal Federal na Era Vargas: pensamento constitucional, desenho institucional e performance jurisprudencial

Abstract

The main object of this master thesis is to analyze the functioning of the Brazilian Supreme Court during the so-called “Vargas Era”. To do so, it adopts three different perspectives: that of the constitutional thinking developed in that period, that of the institutional design of the Court in the three different phases of the regime, and, finally, that of the jurisprudential performance verified from selected case law, in the themes of political crimes, status of the foreign citizens and issues of economic interest of the federal government. The first and second chapters are dedicated to the theoretical construction of the so-called authoritarian democracy, from its origins, its criticisms of the institutionality of the Old Republic and its proposals for the remodeling of the country. Important jurists such as Oliveira Vianna, Francisco Campos and Miguel Reale contributed to overcoming the liberal paradigm, considered inefficient and outdated, and to its replacement by a regime characterized by the Executive primacy principle. The Supreme Court, viewed as one of the ways by which the local clans interests prevailed over those of the nation, should be, from this point of view, submitted to the guidance of the President of the Republic, the only one considered capable of leading the country to unity and progress. In the third chapter, we will see how institutionality was built, in the three phases of the Vargas Era: the Provisional Government, the constitutional phase and, finally, in the “Estado Novo” (New State). The rules of operation and composition of the Supreme Court were immediately altered by decrees issued by the President of the Republic, taking advantage of the exceptional powers conferred to him by the Revolution of 1930, with no legislative involvement. The Constitution of 1934 reintroduced the brakes on the Executive and proved to be prominently anti-authoritarian. The thesis shoes how the normative force of the Constitution was shaken by dismantling measures, approved by the National Congress, and endorsed by the Supreme Court, which paved the way for the coup d’État, that took place in November 1937. Finally, during the Estado Novo, both the independence and the guarantees of the Supreme Court justices as well as the powers of the Court were reduced, to enable the President of the Republic to unilaterally overcome decisions handed down by the Judiciary in constitutional matters. In the last chapter, the performance of the Supreme Court is evaluated from the angle of the internal argumentation of the justices’ opinions, in the most controversial cases of the time, in which the court was provoked to exercise the judicial review of government acts, namely: political crimes, expulsion of foreign citizens and issues of economic interest of the federal government. Opinions delivered in outstanding cases are analyzed, such as Olga Benário and João Mangabeira, in the first theme; that of Ernesto Gattai and several foreign citizens, in the second; and that of the Stardard Oil Company of Brazil and the National Coffee Department, in the third. The conclusions are dedicated to examining the repercussion of authoritarian constitutional thinking on that period institutionality and on the performance of the Supreme Court.