- Brazil’s Supreme Court: Democracy in Crisis? - 5 March, 2025
The Expanding Mandate of Brazil’s Supreme Court
Judicialisation—the transfer of power from other political bodies to the judiciary—has been a growing trend within Brazil’s Supreme Federal Court (STF). The 1988 Constituent Assembly marked a significant expansion of fundamental rights enshrined by the Constitution. Insofar as these rights are essentially principles—freedom of expression, right to life, etc.—, it is the Court’s prerogative to interpret what their observance consists of. Although judicial bodies are responsible for enforcing legislation rather than passing new laws, the open-endedness of rights in the new charter gave the STF authority over many matters typically within the purview of the legislative and executive branches.
For instance, the Supreme Court holds the prerogative to overrule the parliamentary majority to protect minority rights. Should it decide that Congress, by not addressing a given issue, has enabled a gap in the protection of fundamental rights, it can also legislate as a fill-in. Judicial activism—when the court interprets and applies the law more broadly to fill legislative gaps—is grounded in the Constitution as an exceptional mechanism. It remained relatively well-integrated into democracy throughout most of the recent decades, with other branches of government often viewing it as a means to outsource unpopular policies.
Being a post-war event, the Brazilian Constitution arose when democracies generally transitioned from the individual-centered Liberal State to the more collective profile of the Welfare State. As constitutions worldwide leaned towards the expansion of rights, democracies saw judicial bodies become, as a rule, more assertive in interpreting and enforcing constitutional norms and principles.
This prerogative has since been raised in many relevant judgments by the STF. When voting in favor of allowing the termination of pregnancies with anencephalic fetuses, Justice Cármen Lúcia defined the procedure as countering ‘unnecessary and disproportionate suffering on women […] in light of the constitutional principles which protect human beings‘. In the suit that declared corporate donations to electoral campaigns unconstitutional, Justice Luiz Fux argued that such donations ‘offend republican and democratic principles, since [they skew] political representation and jeopardises the legitimacy of elections’. Being policy-related, kindred rulings typically created little public upheaval. Since 2010, however, personalised corruption trials like ‘Mensalão’ and ‘Lava Jato’ have pushed judicial bodies—STF included—to unprecedented public scrutiny.
The Bolsonaro Effect: Rising Tensions in Governance
The presidency of Jair Bolsonaro (2019-2022) represented a turning point in the three-power balance. Brazil was undergoing acute polarisation, manifested through a divisive ratio of Petistas—Workers’ Party (PT) supporters—and Anti-Petistas led by Bolsonaro. Before running for President, Bolsonaro made a name in Congress as a staunch supporter of the Brazilian military dictatorship (1964–1985). His vote in favor of the impeachment of President Dilma Rousseff (2011-2016), broadcasted live on open television, began with the assertion that ‘they [who] lost in 1964, […] lost now in 2016’, and concluded paying homage to Carlos Ustra, a dictatorship-era colonel who allegedly tortured young Rousseff. During his speech, Bolsonaro referred to Ustra as ‘Dilma’s dread’.
As members of an institution whose modern prerogatives were laid during re-democratisation, many in the Supreme Court saw Bolsonaro’s campaign with concern—a feeling reiterated when the candidate announced he planned on court-packing the STF. Tension grew substantially once Bolsonaro was elected. Alongside restricting federal-level executive authority in policies related to COVID-19, the Court initiated an inquiry investigating several of Bolsonaro’s allies accused of spreading disinformation on democratic institutions. The inquiry later expanded to include both alleged funding networks behind disinformation and threats made against STF Justices. As the one assigned to preside over the inquiry, Justice Alexandre de Moraes experienced the early stages of his surge in notoriety, which has not slackened since.
Attrition between President Jair Bolsonaro and the STF peaked in the period from July to September 2021. Throughout July, the President made increasingly bolder statements against Brazil’s electoral system, often challenging the legitimacy of electronic ballots and claiming the Superior Electoral Court (TSE) was complicit with fraud. The TSE reacted by sending a criminal notice to STF Justice Moraes accusing President Bolsonaro of disinformation and undemocratic discourse. Moraes accepted the request, to which Bolsonaro then threatened to bypass the Constitution. ‘My game is played within the pitch,’ the President told the press. ‘But if it leaves the pitch, I’m compelled to leave the pitch too.’
As animosity escalated, STF President Justice Luiz Fux deleted a planned conciliation meeting between the three branches of government, saying he had previously cautioned President Bolsonaro about the limits of the right to freedom of expression and the ‘non-negotiable respect between the branches of government’. On Bolsonaro’s ‘repeated offences’ to Justices Barroso and Moraes, Justice Fux stated that ‘when you attack one member of the Court, you attack the entire Court’.
On September 7th, President Bolsonaro visited two parades honouring Brazil’s Independence Day—one in Brasília, one in São Paulo. His statements that day were the most explicit so far against the STF and democracy overall. The President labelled the demonstrations an ‘ultimatum’ to Brazilian institutions, asserting that he would only leave the presidency ‘dead, imprisoned, or victorious’. His speeches antagonised the STF mostly concerning Justice Moraes, henceforth consolidated to Bolsonaristas as their main adversary.
This two-month period marked a turning point for the STF vis-à-vis other branches of government—not only because it revealed vulnerabilities in a still recent democracy, but also because it provided a depiction of how the ‘political chessboard’ surrounding the Supreme Court has looked ever since. Brazilian democracy has quaked many more times. A Capitol-inspired storming of the Three Powers Plaza by Bolsonaro supporters widened the range of sentiments over the STF. Under Moraes, the Court has sentenced over 200 people involved in the event, with rulings of up to 17 years in prison. Also under Moraes, the TSE declared Bolsonaro ineligible until 2030 for spreading disinformation on the Brazilian electoral system, whilst investigations into the ‘digital militias’ continue the Justice’s protagonism within the Supreme Court.
Notwithstanding the eventful character of the decade, the chessboard has somewhat remained the same all the way through, at least concerning the stakeholders on each side. Bolsonaro may be politically weakened, but Bolsonarismo remains influential in Congress. A Parliamentary Commission of Inquiry (CPI) was recently filed with the Chamber of Deputies to investigate alleged abuse of authority by Moraes, with 147 federal deputies declaring their support for opening impeachment proceedings against the Justice, 273 undecided and 96 against. Members of the Senate—the body responsible for processing and judging impeachment requests for STF Justices—have announced that they should delay filing for impeachment until September to galvanise public support and gather evidence.
Most STF Justices have consolidated around Moraes to present an optics of internal stability. When deciding on issues related to disinformation and democratic principles, they have mostly conveyed coherence over variance. Consequently, the Court has increasingly relied upon Moraes’ hard-line approach in kindred issues. Despite Bolsonaro supporters seeing Justice Moraes as a ‘dictator‘, the current presidency of Luiz Inácio Lula da Silva praises him as a strongman instrumental in safeguarding democracy. Division was blatant in 2024’s Independence Day—the government-backed parade in Brasília was titled ‘Democracy and Independence: Brazil on the right track’ and was attended by Lula and his officials alongside STF Justices, including Moraes; the parade in São Paulo, on the other hand, was attended by Bolsonaro and opposition members, marked by flags against Moraes and Lula, calls for amnesty for those arrested for the storming of the Three Powers Plaza, and pleas for the Senate to address the request for Moraes’ impeachment.
STF as a Shield or a Sword to Brazilian Democracy?
The struggle between Bolsonaristas and the STF is, on the surface, one between different notions of governance. But in the context of judicialisation, the outcome may just as well be shaped by Machiavellian politics.
To those sympathetic to Justice Moraes and the STF, Brazilian democracy faces an immediate threat that calls for a stringent response. Compared with their adversaries, they are often more lax towards the prerogative of judicial activism, viewing it as a legitimate means to counter disinformation campaigns and authoritarianism. Moraes’ decision-making, according to some, reiterates the Court’s mandate to interpret and enforce constitutional norms, including the integrity of democratic processes, where other branches may fail. Some supporters acknowledge that the Court has acted beyond its prerogatives, but argue that a context of democratic erosion calls for pragmatic rather than ideal solutions.
Conversely, critics view the STF as the real authoritarian party in this dispute, blowing activism out of proportion and thus skewing the three-power balance. A common claim is that Moraes has amassed too much power since taking charge of the TSE. His establishment of a covert intelligence unit that operates outside of Brazil’s official federal agencies is seen as threatening individual rights and proper oversight. Moreover, critics argue that several of the emergency measures implemented under his leadership—such as imposing fines on VPN users, jailing individuals without a trial for social media posts, and suspending social media accounts or entire platforms (e.g., Telegram and Elon Musk’s X)—, may persist beyond the current political circumstances. There is concern that these powers could be turned against political factions of varying ideologies in the future, undermining democracy as a whole.
Those critics often frame their resistance to the Supreme Court as a defence against an overly politicised judiciary. They claim that on the grounds of protecting democracy, the STF works against it through excessive punishments and biased decision-making. The struggle is described as one between elected officials and an unelected, increasingly authoritarian Court.
Judicialisation has blurred the lines of governance. Constitutions are not monolithic; as written by Lacey, ‘legal principles must be understood as contingent upon human perception and the realities of social life’. As the STF finds itself immersed in the political milieu, the dispute may be ultimately settled less by law than power.
Key Questions:
- Where does the boundary between legal enforcement and interpretation lie within the framework of Brazil’s 1988 Constitution?
- Has the Supremo Tribunal Federal (STF) overstepped its mandate in recent years? Was the STF ever legitimised to do so?
- Is the judicialisation of politics as seen in Brazil a unique phenomenon, or is it part of a global trend in modern democracies?
- To what extent has the STF hindered and/or safeguarded democracy in recent years?
Suggested Reading:
- Lunardi, F. C. (2020). O STF na Política e a Política no STF (1st ed.). Saraiva Jur – Sob Demanda.
- Tate, C. N., & Vallinder, T. (1995). The Global Expansion of Judicial Power. NYU Press.
- Yeung, L. L. (2018). Bias, insecurity and the level of trust in the judiciary: The case of Brazil. Cambridge University Press.
