Opinion – Helio Beltrão: The STF should learn from the Supreme Court

Over the past ten days, the US Supreme Court (“Scotus”) has made iconic and controversial decisions on abortion, gun ownership and the environment. Protests erupted, and a man was accused of plotting the murder of a conservative judge, Brett Kavanaugh. Angry malcontents accuse the court of judicial activism and revoking established rights.

Not quite. The interpretative confusion reveals a reasonable lack of knowledge about the US constitutional system, the oldest and most successful among its peers. The patrons gathered at the convention in 1787 sought to secure the sovereignty of each of the original (and future) 13 states by forming a Federation from the bottom up with an extremely limited central government.

Each state maintained its autonomy and legal order, with the exception of very few powers delegated to Congress and certain prohibitions on violating certain enumerated rights (particularly in the Constitution’s Bill of Rights).

As the 10th Amendment clarifies, “Powers not delegated by the Constitution to the United States [governo federal]nor forbidden to the states, remain reserved to the states respectively, or to the people”.

The patrons’ idea was to avoid tyranny, allow for greater political participation at the local level, and keep states as laboratories of competing good ideas. Even if one person or group were to take control of all three branches of the federal government, federalism guarantees that each local government will continue to operate independently. There are fundamentally 50 “countries”, whose interests and powers persist autonomously. It is a very different beast from the centralist unitarianism we have here, in which virtually every rule is born or dies in Brasília.

It so happens that Scotus has become more activist over the decades. From the 1930s onwards, it embraced a “constitutional revolution”, which migrated from a conception of essentialist guardian of the constitutional text to a subjective adaptation of the text that came to justify more activism and invention of rights, at the whim of the interpreters.

In this wake, 50 years ago, in the case of Roe v. Wade, the Supreme Court instituted nationally a fundamental right to abortion, which was based on the questionable understanding that the Constitution protects the mother’s privacy and, by extension, her right to abortion.

Last month’s Scotus decision overturned the precedent, in an acknowledgment of its earlier abuse of authority: since there is no right to abortion in the Constitution, the court cannot establish it, as it is not the legislature.

But states can. In other words, the right to abortion remains in those states that provide or will provide for it. There was only a devolution of power to the states, which could never have been supplanted or subtracted. The abortion rule depends solely on the local political system: there are states that allow it and others that don’t.

The case of carrying weapons is the opposite. Certain states restricted or thwarted this right, expressly guaranteed in the Constitution. In this case, Scotus, albeit belatedly, correctly declared the impeding state legislation unconstitutional.

The environmental case is restricted to the federal scope. The environmental agency (EPA) sought to establish macro-rules for the power generation system as a whole (“cap and trade”), in addition to its traditional power to regulate each generating unit. Scotus has determined that it must abide by the powers outlined in the legislation.

Therefore, no rights were revoked, on the contrary, and a promising reversal of earlier activism did indeed take place. May it serve as a lesson for our STF, which arrogates to itself the duty to be “enlightened” at its discretion, establishing rights and supplanting the political process.