Both the Federal Supreme Court (STF) and the US Supreme Court are at the center of acute political struggles. Seen from a distance, the quarrels are similar, but in detail there are important differences.
In the US, the court is under attack for the likely reversal of precedents on abortion rights signed in 1973 and 1992. One of the judges expected to compose the new majority is seen as occupying a vacancy that the Republican Party “stole” from the Democrats, because the last name nominated by Barack Obama was not even appreciated by the Senate: the nomination at the end of the presidential term was obstructed.
Subsequently, Republican Donald Trump became president and also had a nomination at the end of his term. Then the Republicans’ conversation changed: nothing to leave it to the next president. The imminent reversal of pro-abortion jurisprudence will only be possible thanks to this “stolen seat”.
The most radical and most interventionist proposal, to increase the number of judges in the courtroom to give President Joe Biden a few more nominations, is illusory. Democrats would not have a majority to pass it even if they wanted to. But the substantive issue that such a proposal faces is a real challenge to the court’s legitimacy. The perception that the current balance of forces at court is unbalanced by Republican foul play undermines the reliability of their decisions.
On the table are also reform proposals that have been seriously debated by jurists and political scientists for a long time, within a framework of democratic normality and commitment to the integrity of the court. The main one refers to the institution of an age limit or a fixed term to be a judge in the court, which would force its members to retire at a pre-established time.
In Brazil, the band from the assault against the STF plays in another tuning fork. Who speaks against the court is not a party that has lost the right to appoint a member to the court for breach of fair play by opponents, but a president that does not accept what all presidents have to live with: decisions contrary to their interests taken by judges he did not choose and who do not answer to him.
While in the USA the main themes of the debates on the Supreme Court are part of a long tradition of reflection on the expanded protection of constitutional rights by the Judiciary, the agenda of challenges to the STF in Brazil oscillates according to the political whirlwind of the week: today is the pardon, before it was gun decrees, actions in the pandemic or some measure of environmental dismantling.
And tomorrow, we already know, there will be candidacies, polls and the elections themselves. What exists is the desire for confrontation to subdue the court, with any right being the mere pretext for each new fight.
Trump never took the stage to announce disobedience to Judge Ruth Bader Ginsburg (1933-2020). No Tea Party deputy has threatened US Supreme Court justices with physical violence. No army general posted a threat to the court on Twitter before any trial, even in the many cases where issues directly sensitive to national security were indeed at stake.
Anyone looking for parallels to the threats against the STF should look not to the US but to Poland. There, the dominant party, the PiS (Law and Justice), invested against the Judiciary, including the Supreme Court, through compulsory retirements and disciplinary intimidation. There is no doubt that this agenda is on the horizon for a second Bolsonaro term, ideally with more support in the Senate.
Court decisions are sometimes good and sometimes bad. Harsh criticism is part of the democratic debate, as are discussions about reforming justice institutions. The devil lives in the intentions – and Bolsonaro does not hide his. He just doesn’t see them who confuses the democrats with the Polish autocracy.
