Opinion – Helio Beltrão: Even when it gets it right, the STF is wrong

On Sunday (4), the eve of the payment of the newly established salary floor for nurses, technicians and nursing assistants, Minister Luis Roberto Barroso of the Federal Supreme Court (STF) granted a precautionary measure suspending the law. Even when it gets it right, the STF errs.

Barroso is being accused of favoring the business class, which “does not want to pay fair prices”. Nurses, through various associations and unions, plan acts in protest against the decision, and threaten to paralyze health services.

As I tried to demonstrate three weeks ago, the constitutional amendment that established the floor is a shot in the foot. It is particularly harmful to (1) philanthropic organizations and hospitals such as Santas Casas and small hospitals; (2) inexperienced nurses entering the workforce, and (3) nurses employed in lower-average states who may lose their jobs.

Additionally, the health service tends to deteriorate with the reduction in the number of beds and the number of nurses, technicians and assistants, especially in small hospitals.

Since then, surveys of the health sector and numerous preventive layoffs have supported the above predictions.

It would make sense to argue that the minister got it right. After all, everything indicates that the social costs will be high. So, justice would be done. But what about the chorus of the nurses’ class, which defends that “the floor represents the valorization of the profession”? Wouldn’t the floor be justice for this minority?

In the famous anecdote, on returning to a Capitol session after lunch, a colleague of American judge Oliver Wendell Holmes said goodbye enthusiastically: “Go, sir, do justice!” Holmes stopped and replied calmly, “Justice? It’s none of my business. My job is to apply the law.” Holmes meant that justice comes only from continual and regular adherence to the rules of the game.

You don’t have to have studied law to recognize that there can be unjust laws or “unfair” decisions that are right under the law. There are also, on the contrary, “fair” decisions that are incorrect in the eyes of the law. The latter seems to be the case with Barroso’s decision. Let’s see.

In our current system, differences in values ​​are mediated by the political process of Congress (and local legislatures), which culminates in legal norms or updates of the constitutional text itself.

It is not the role of the STF to act as an illuminist, interpreting the Constitution in a creative way, squeezing ambiguous and vague statements until it extracts justifications to advance its personal values. This is activism. The STF cannot create law “ex nihilo” or transform society’s norms without support in acts of Congress. It is true that each minister has a vision of the world and of the Law itself that cannot be extirpated from their decisions. But the STF must avoid interfering with the Legislature and remain distant from public policy determinations.

Congress overcame all the arduous obstacles in the political process by amending the Constitution to set the floor. Eventually, this populism will be corrected, I believe, by revoking the amendment or changing the law that determined the value of the floor. This is the only way within the rules to remedy the misunderstanding. Until then, as Holmes said “if the country chooses the road to hell, I will help them because it is my job”.

Finally, the STF should not play the role of central calculator, making predictions and estimating consequences. If the experts themselves, the economists, are more wrong than they are right, what will the judges say? Let us not place authority over crucial economic decisions in the hands of central planners.

This maneuver has all the smell of some arrangement with public money to please the parties.
More than ever, long live the Independence of Brazil!