Judicialization of politics, judicial activism, and institutional tensions
José Eduardo Faria
Portuguese to English translation and copyediting by Gisela Christiano and Melissa Harkin (Harkin Translations).
José Eduardo Faria: Full Professor at the Law School of the University of São Paulo and head of the Department of Philosophy and General Theory of Law (DFD).
Since the end of the Brazilian military dictatorship in January 1985 and the country’s re-democratization — with the promulgation of the Constitution in October 1988 — the protagonism of the courts has increased both in scope and in complexity.
Such growing protagonism resulted, on the one hand, from the strengthening of collective rights resulting from the implementation of a type of class action called public interest litigation. Created in 1985, it allows a procedural substitution in which a group or an entity may file the action on behalf of the class members. Due to the expansion of social movements and human rights defense entities, this procedural instrument has been broadly used, giving visibility to several claims, such as those seeking the realization of social rights guaranteed by the Constitution. In recent decades, this procedural innovation has allowed unidimensional and two-party actions to become multidimensional and multi-party actions. On the other hand, that same protagonism also resulted from the judicialization of countless matters that until the 2010s were not submitted to the courts, despite having a substantial impact on society.
The increasing influence of the courts in the political, social, and economic life in Brazil is also due to (i) the country’s fiscal crisis, (ii) the legal uncertainty resulting from the surge of new statutes enacted to deal with specific and conjunctural problems, (iii) the weakening of political power, (iv) corruption scandals, (v) the control exerted by private interests over certain sectors of the public administration, (vi) the strengthening of social movements, (vii) the mobilization of civil society and, currently, (viii) the repeated offenses caused by the Brazilian President to the Superior Electoral Court (TSE) and the Federal Supreme Court (STF).
As of 2010, the more trial and appellate courts decided novel types of litigation, the more they were accused of exceeding their powers, applying statutes in a non-technical manner, and allowing judge’s partisan leanings to influence their decisions by interpreting statutes beyond their literal sense. However, if the law is expressed in words and words have the most varied meanings, is it, then, possible to specify the literal meaning of the law? If the courts play an essential role in stabilizing society’s expectations regarding the law, how broad is the interpretive freedom of judges considering the variety of interpretation methods, argumentative angles, and decision-making techniques? Where is the line between discretion and choice in interpreting the law? How can we determine when judges go beyond interpreting the law and start creating laws?
To answer such questions, we must understand how the Brazilian re-democratization process has created political and legal dilemmas that need to be addressed. As a result of social exclusions and asymmetries, forming a common sense of justice is challenging in Brazil. On the political front, this results in a lack of consensus; at the same time, politics needs to create a programmatic horizon to legitimize itself. Starting by the Constitutional Convention of 1987–88, the response to these dilemmas has involved adopting rules with high loads of value and purpose — like principles and programmatic rules — and expanding the number of actors and judicial instruments meant to realize constitutional aspirations covering a wide range of matters and public policies.
Thus, to understand court protagonism in the new balance of powers designed by the democratic order, one needs to consider both the different views on law interpretation and the different procedures for dealing with conflicts. Such an understanding allows the distinction between judicial activism and judicialization and a clearer comprehension of the institutional role of judges, appellate courts, and, especially, the Federal Supreme Court.
Law enforcement and democracy
The mere existence of the questions above shows that the criticisms alleging that the courts are exceeding their power come from people who have a simplistic view of the law, who see the law as if it were just a logical chain of statements or a systematic and logically coherent set of rules. People who do not know that the law is a historical fact, a living institutional arrangement; people who think that legal hermeneutics is limited to identifying the meaning of the words or grammar in the legal language. People who — despite their claim of being impartial and subject to certain hermeneutical limits — do not see that judges find it difficult to distance themselves from the socioeconomic and cultural context in which they work and that judges, when adjudicating cases, enjoy some freedom in terms of opportunity and convenience (they exercise some discretion). People who do not know their own country and do not understand that, in unequal societies marked by the crossing of lines of conflict, lack of consensus, and erosion of mechanisms for the formation of collective identities, judges must adjust their role to contexts that are continuously changing and often in crisis, and this prevents judges from making uniform decisions.
People who have neglected the fact that, in the last decade, the Federal Supreme Court has been increasingly called upon to assess the constitutionality of Executive actions, to decide conflicts in the Legislature that its leaders were unable to resolve by consensus, and to provide answers when these two branches knock on the court door asking for decisions that they were unable to negotiate. The image of the Federal Supreme Court tends to wear out when the court has to go beyond its technical functions by making up for legislator’s omissions (e.g., regulating strikes in the public service), intervening in issues that the other branches cannot resolve, and declaring the constitutionality of certain public policies challenged by parties — defeated in the parliamentary game — trying to reverse them in court. Despite being a part of democracy, this sometimes triggers institutional tensions and encourages the proposition of bills restricting judges’ discretion and criminalizing, as abuse of power, interpretations that contradict the letter of the law or use different interpreting methods without reasonable grounds.
Of course, judges are not free to assign whatever meaning they wish to the Constitution and laws. The further away they move from the letter of the law, the more abuses or mistakes they might commit. The interpreter’s freedom is not absolute. However, the limits of judicial discretion are uncertain. In addition, courts are reactive and act only when duly activated. Moreover, courts cannot fail to respond to the claims, disputes, and questions brought to them. Therefore, the courts do not control their agenda, which means that the adjudication and interpretation work might give way to the judicialization of politics and the economy — which is inevitable in certain periods, given the need for judicial resolution of unresolved political conflicts.
Above all, these criticisms fail to address five critical issues. First, the institutional implications of the judicial creation of law. When constitutional provisions take the form of principles, how to define minimally objective criteria to interpret them, combining legitimacy and legal certainty? By expanding the political-normative powers of judges, does not broad interpretation allow the courts to expand their field of action, thus risking institutional tensions?
Second, how representative Brazilian democracy is. Due to the weight of the economic power in electoral financing and the fragmentation of the party system, the majority in the Legislature lacks legitimacy. Therefore, by striking down Legislative decisions, could the Federal Supreme Court be acting in a counter-majority way, trying to provide minorities with answers to demands for justice not met by the Legislative majority, thus neutralizing the lack of representation?
Third, the democratic deficit of political representation. The Legislative legitimacy crisis, which has dragged on for years, has led the courts to become more sensitive to social concerns than the channels in charge of promoting the aggregation of interests and taking collective decisions. Therefore, does not society tend to identify itself more with judges than with members of Congress?
Fourth, the “substantivation” of democracy. The idea is that it is not limited to the majority rule and the legislative role of Congress but also increases the power of the courts. If the Legislature is legitimized by vote, the courts are legitimized by a discursive process in which the reasons for the decisions are explained. However, by resorting to arguments and judgments of opportunity not expressed in the interpreted laws, don’t the judges end up legislating?
Fifth and last, the distance between what democracy should be — prioritizing public interest — and what it actually is. This issue was evidenced after the negotiation of Executive Orders with contractors in exchange for bribes became public knowledge in the second half of the current decade. That shows a reversal of values since executive actions can be traded as goods by large companies wielding enormous hidden powers. In the legislative process of a democracy that prioritizes public interest, the general character of laws ignores the particularities of specific cases. Nevertheless, in the context of a Congress converted into a business counter, particularities prevail. Might the courts escape the influence of hidden powers and the particularities of specific cases?
In such a context, how can courts neutralize — without criminalizing politics — the irresponsible rational-instrumental calculation underlying public-private relations, thereby avoiding the corrosion of the fundamental moral pact on which the legitimacy of the representative system depends? In other words, to what extent are the courts — when fighting corruption in politics — not seduced or tempted to occupy the empty spaces left by the politicians they have convicted? Are courts not degenerating themselves morally and institutionally, on the one hand, while making way for moralistic adventurers in politics, on the other? Furthermore, how can courts reconcile the political nature of institutional conflicts brought to them with the duty to render decisions based on and limited to the letter of the Constitution and laws?
The protagonism of the courts
The common aspect of the issues listed above is that the politicization of the Judicial Branch tends to increase the protagonism of its members, which was evidenced, for example, by Operation Car Wash, launched in 2014. Therefore, politicization exposes the courts to the pressures of the other branches, which leads the courts to assume more defensive and corporative postures, thus triggering, as in a vicious cycle, new institutional confrontations.
The Constitution of 1988 created the dilemmas reproduced in this institutional scenario. On the one hand, it increased the roles of the Attorney General’s Office — even beyond the criminal scope — and its standing to bring cases before the Federal Supreme Court. It also created a Public Defender’s Office in each state, which became particularly active in family courts and corrections courts, in addition to the Federal Public Defender’s Office. This not only significantly increased court access for those who did not have the finances to defend their interests and rights but also changed the profile of court cases, especially those arising from collective conflicts, which progressively overlapped with individual conflicts. On the other hand, the Constitution has allowed parties, associations, and entities such as the Brazilian Bar Association to bring actions seeking judicial review of constitutionality — which previously was an exclusive power of the Federal Attorney General. These new procedural instruments include Direct Actions of Unconstitutionality, Declaratory Actions of Constitutionality, Direct Actions of Unconstitutionality by Omission, and Claims of Violation of Fundamental Precepts of the Constitutions — which previously was an exclusive power of the Federal Attorney General.
Such innovations, intended to strengthen democracy after two decades of military dictatorship, expanded the demands for justice, increasing the number of actions and thus causing an overload of the courts. In the first 20 years after the promulgation of the Constitution, for example, over 4,000 Direct Actions of Unconstitutionality were filed before the Federal Supreme Court. The Court’s number of new cases per year increased from 18.5 thousand in 1990 to 160.4 thousand in 2002. The number of actions filed in the trial level of the State, Federal, and Labor Courts rose from 5.1 million in 1990 to 28.2 million in 2012. These numbers ended up leading critics of the courts in general and the Federal Supreme Court, in particular, to trivialize an expression to synthesize their discontent: activism.
Law interpretation and judicial activism
The objection is that activist judges threaten democracy when they apply broad interpretation to the law because they have not been elected by people’s vote or the majority rule. That is why the tension between judicial protagonism and the legal rules that limit — or should limit — the discretion of judicial decisions and preserve established rights has become one of the most critical and controversial issues in Senate hearings to confirm nominees to the Federal Supreme Court.
Among the nominees questioned after 2014, some expressed their normative background. They showed their leaning toward legal positivism. They emphasized the logical-deductive link among the statutes and highlighted the importance of their formal validity. They defined court disputes as an opposition of interests or shock of expectations. Furthermore, they said that the Federal Supreme Court had, in some judgments, legislated improperly, thus invading the power and autonomy of the Legislature.
They also highlighted the importance of the interpretation of statutes and the political nature of some decisions. Despite recognizing that the legal system does not derive from a set of axioms of conduct, they recalled the existence of methods of interpretation that limit the trier’s discretion, thus ensuring a certain standard of interpretive practices. For this reason, the role of judges should be eminently analytical, as they simply look at social disputes based on legal rules.
Other nominees considered the premise that the contradictions of society underlie legal disputes. They were inspired by the so-called legal realism — which values material sources, precedents, and historical evaluations — when they highlighted the effects of democratization on access to the courts. They pointed out the importance of legal reforms arising from the need for the country to adapt the law to a context of social security, monetary, labor, and administrative reforms, and new ways of action by social movements. They also recalled that the interpretation of the Constitution and a statute is not exhausted in its lexical definition but also depends on the semantic meaning given by the community to which the trier belongs and where the disputes occur.
Additionally, they said that legal reasoning cannot be seen as a type of strictly deductive reasoning since legal reasoning necessarily has intrinsically connected moral and political components that vary according to the time and level of development of each society. Hence the importance of looking at the legal rules based on actual disputes — they concluded. After all, as statutes are a product of collective conflicts and historical contingencies, court decisions are conditioned by non-legal factors.
For those nominees, in other words, there is no meaningless legal rule, there is no sense without interpretation, and every interpretation contains some subjectivity in establishing the meaning of the rules. And that, ultimately, turns adjudication into a confrontation between not only legal techniques and jurists but also politics, since judges and justices may choose among the most varied interpretations to base the decisions they consider fair. Finally, these nominees for a seat on the Federal Supreme Court differentiated judicial activism from the judicialization of politics.
In that, two confirmation hearings illustrate these differences well. For instance, Justice Alexandre de Moraes, when asked about judicial activism, spoke about classic themes of State Theory, such as the balance among the branches of powers. He stated that when the role of a supreme court increases, there is a clash with Congress that might create an institutional guerrilla with no one to settle the dispute. He emphasized the need for some stability between rules and interpretation. He also criticized the subjectivism of certain sectors of the judiciary branch.
The other confirmation hearing was that of Justice Luís Roberto Barroso. When answering similar questions, he said, among other assertions, that the language of the law often shows only a frame within which different possibilities of interpretation exist. Thus, the meaning of a constitutional provision is determined in the decision-making process according to the particularities of each case, the principles that must be preserved, and the purposes that must be carried out. He also recalled that a legal system is constantly changing and reflects the wills, values, and conflicts of interest of the society. He also recognized that the judge is active and should act based on an assessment of the facts and shape the litigation to ensure an outcome that is not only fair but also viable.
In this sense, judicial “activism” is a proactive interpretation strategy used by judges to fulfill constitutional promises, applying them to situations not precisely addressed in the Constitution. Even if they are not confused with the free creation of the law, broad interpretations might trigger institutional tensions as they politicize the courts. This type of interpretation assures judges the flexibility to deal with problems not objectively covered by the Constitution.
As the legal system has a high number of principles, given the complexity of a society characterized by such misery that denies the equal protection of the laws, activism is associated with greater participation of judges in the realization of constitutional rights, thereby allowing them to bridge the gap between the legal system and the actual conditions of society. Due to their general characteristic, principles allow the adjustment of decisions to the particularities of each case.
The Federal Supreme Court nominees who present themselves as normativists see the Constitution as a limiting factor in interpreting the law. The nominees with interdisciplinary training, on the other hand, understand that the grounds of judicial decisions are more important than the constitutional rule itself, proving themselves to be supporters of constitutionalism of arguments and principles. The former see activism as a problem, while the latter see it as an instrument to review historical injustices in terms of power and wealth and preserve the rights of minority sectors of society.
The phenomenon of judicialization
Often mistakenly associated with judges’ activism, judicialization is the tendency to expand the Executive and Legislative action of courts in the social, economic, and political life, leading democracy to depend on court decisions increasingly. Judicialization involves different factors and increases the risks of the excessive opening of the legal system to the political system. Judicialization results from the country’s growing complexity in recent decades, which led to the incorporation in the Constitution of matters previously dealt with by statutes. The consequence was increased risks of governability crises, decisional paralysis of the various levels of the Administration, and tensions between the Judiciary and the other branches since the constitutionalization of these matters paved the way for them to be judicialized, thus reducing the political field and increasing the field of action of the high courts — mainly the Federal Supreme Court, which is responsible for guarding the Constitution.
Protagonist courts can ensure the “aspirational rules” of the Constitution, building a better, fairer, and more egalitarian country. However, they might also interfere in the merits of administrative acts, alleging the need to apply constitutional principles or contain deviations of purpose, thus replacing the will of the Administration. This tends to lead the Judiciary to be more feared than respected, as happened with Operation Car Wash, which, over time, resulted in the loss of credibility of its prosecutors and its primary judge.
That is one of the facets of the country’s institutional maladjustment. Given the difficulty of dealing with the matters that were constitutionalized through rules expressed by unambiguous concepts, the framers of the Constitution, out of prudence and high doses of pragmatism, resorted to principles, which are imprecise by nature. The reason was the absence, among the framers, of hegemonic groups capable of writing objective legal provisions regarding controversial issues.
Debates revolved around exclusionary power projects, with the left invoking national sovereignty to defend government interventionism and state control of natural resources and strategic sectors of the economy, and conservatives defending pro-market proposals, greater openness to foreign capital, and measures aimed at curbing inflation by controlling the issuance of money and government spending. The debates also reflected different worldviews and were intended to shape reality in a predetermined sense.
There was also a problem: over the 20th century, the legislator got used to passing formally general and abstract statutes conceived based on sedimented routines, homogeneous social practices, and common expectations of justice. In a way, this was a guarantee of a low political cost of imposing new statutes. However, the changes that occurred after the country’s industrialization, especially between the 1960s and 2000s, led this strategy to exhaustion. Industrialization caused an urbanization process that changed society’s moral agenda, shattered the typical expectations of justice that had prevailed, and brought about new types of disputes. Brazilian society became so dynamic and heterogeneous that, from then on, routines were eroded, and the sedimentation of new behavior patterns became more difficult.
With this, the idea of a common culture capable of calibrating the expectations of the entire society gave way to a plurality and heterogeneity of social actors, which, as a result, multiplied particular situations. Legislating in a society with these characteristics and with increasingly multiform situations, such as the Brazilian one, has therefore become a lengthy and challenging process.
Rules and principles
Concerned about the risk of delaying the conclusion and promulgation of the Constitution, the party leaders opted for an intermediate solution to resolve the impasse between the left and the conservatives. Constitutional provisions that were consensual and involved homogeneous social practices and common expectations of justice were written as legal rules. The provisions about which there was no consensus and were not based on routines and behaviors already established in society were written as programmatic rules.
That is the reason, in certain chapters of the Constitution, the framers valued principles over rules. The excess of programmatic rules or principles in the extensive constitutional text resulted, precisely, from the lack of hegemonic groups, due to the balance between political forces among the framers.
Rules and principles have a distinct logical nature and play complementary roles. Rules have a limited scope and a defined number of situations in which they can be applied. They are expressed through objective and precise concepts — which allow strict interpretation — and apply to the most common cases, generating a peaceful jurisprudence. Due to their specificity, legal rules tend to operate on an all-or-nothing basis. In other words, a legal rule regulates a given matter in its entirety, which is why whenever the conditions set for its application arise, the legal effect provided for under the rule follows almost automatically.
Principles, on the other hand, have a broader scope than rules and apply to an indefinite number of situations since they are expressed through indeterminate and polysemic concepts. This ambivalence allows each citizen to imagine that the legislator protected their wishes. From the point of view of a legislative technique that stands out more for its functionality than for its formalism, principles are used to calibrate social expectations and offer diversified arguments for legal reasoning. Due to their general characteristic, principles allow the adjustment of decisions to the particularities of each case. Moreover, when principles eventually clash, judges have to consider the relative strength of each, which requires weighing or balancing values.
The distinction between rules and principles helps to understand the legislative process in stabilized and integrated societies, with their habits and routines, and in changing societies marked by sharp inequalities, in which growing social conflicts put the stability of laws at risk. Thanks to their indeterminacy and vagueness, which are inherent in the relationship between a general and a particular proposition, principles play a decisive role as a legislative technique as they help to combine permanence and change. Among other reasons because, if almost every particularity fits into more than one generality, the particularities implied in each generality are inexhaustible.
Ambiguity helps the law to remain unchanged while, through reinterpretation, it adapts to new circumstances. That is why principles, which require a balancing test for interpretation, are usually applied to the most intricate cases that can no longer be governed by bodies of general, impersonal, and egalitarian rules given the social distance and the incompatibility of the codified law with heterogeneous situations. In other words, the more complex the society, the less it can be governed by precise and objective rules.
As principles increase judges’ discretion, their massive use changed the meaning of the application of the law, enabling the conversion of the Judiciary in general and, more specifically, the Federal Supreme Court into a “legislatively” active institution. Hence the expansion of the phenomenon of judicialization in the country.
Furthermore, there is another important aspect to these complementary roles played by rules and principles. In complex, heterogeneous, unequal, and unjust societies such as the Brazilian one, where legal protection requires a combination of rules and principles to be applied to the most difficult cases, interpretation is an essential task in the legal activity. Interpretation is not a mere declaratory act of a judge — on the opposite, it implies a reconstruction of the interpreted legal text through argumentative practices on which its complexity and consequences depend.
In this sense, the interpretation of a rule or a principle is not for the law as a reflection for the mirror but rather resembles the relationship that links the seed to the plant. Older and newer interpretations interact, continually modifying the legal system. Thus, as far as the application of the law results in reasoned and non-arbitrary decisions, which allow the evaluation of their ethics and legal authority (jurists), the interpretation of rules and principles gives meaning, scope, and effectiveness to the legal system.
Difficult cases and the scope of the law
The debate on this topic advanced significantly between the 2000s and 2020s, when, as a result of controversies about judicial discretion and legal argumentation, the legal practitioners began to incorporate philosophy, sociology, history, and anthropology in the basis of their decisions. One of the arguments developed by them is that deductive logic does not allow reasoned judicial decisions in what the American philosopher of law Ronald Dworkin, an obligatory reference for several generations of jurists, called hard cases .
Hard cases are those in which uncertainties arise from the non-existence of a precisely applicable rule, from the existence of contradictory rules on the matter that allow different decisions, or which depend on solutions that are strange to the community. As in these cases, judges have no choice but to “innovate, using their political judgment,” as this author says, and as public opinion often tends to be divided about these “innovations,” judges often end up facing difficulties in making decisions that meet the expectations of different social groups and risk triggering fierce clashes of opinions and causing a social outcry.
The debate over the limits of interpretation in the application of the law has gained new contours in recent years with the expansion of the scope of the law in the Brazilian economic, social, and political life, forcing lawmakers to accelerate further the replacement of precise and objective legal concepts with concepts expressed by open and polysemic terms. That was a strategy specially designed to help preserve the legal system, allowing it to adapt to historical circumstances by avoiding the anticipated definition of the future in more precise terms. The consequence was the increase, at an even faster pace than at the beginning of the current decade, of the cases in which judges are called to assess principles with broad discretion, starting to act as actual legislators.
The constructive interpretation, which takes place when judges have to apply principles to cases based on their knowledge, values, and convictions, has further expanded the protagonism of the Judiciary as the high courts had, in some moments of institutional tensions — e.g., the impeachment of President Dilma Rousseff in August 2016, the non-republican dialogue between President Michel Temer and businessman Joesley Batista in March 2017, and the constant offenses of President Jair Bolsonaro to the courts between 2020 and 2021 — , to validate, legitimize, and decide appeals of the political system.
From then on, the Executive and Legislative branches began to discuss, once again, the feasibility of imposing limits on the interpretation of laws and drawing attention to the narratives formed in the high courts and the Federal Supreme Court. These narratives, which multiplied after the episodes involving these three presidents, consist of legitimation standards and legal traditions to justify certain political relations.
In response to criticisms of the judicialization of the political life and the “partisanship” of the Judiciary, successive Chief-Justices of the Federal Supreme Court began to take advantage of public functions such as the opening of the court’s term after recesses for statements aimed at reinforcing their narratives. In this sense, they started to say, for example, that the court “is attentive to attacks of untruths,” that harmony among the branches does not mean “impunity,” and that offenses “covertly delegitimize the country’s institutions, surreptitiously eroding the democratic values that free us from obscurantism and intolerance.”
Conclusion
Of course, the point is not knowing who is a progressive or conservative judge. The point is identifying who, in a period of strong institutional tensions, can judge by taking into account both rules and principles. Furthermore, the social, economic, political, and cultural changes that can influence the courts in reaching their decisions aimed at regenerating the representativeness of the democratic regime and, consequently, overcoming institutional disarray.
That is precisely the crossroads at which the Judiciary branch currently finds itself in Brazil. It is the pillar of the rule of law that has been eroded by an inept, populist, and autocratic government. The courts have to make decisions in an explosive social context, far from the idea (quite common in the legal culture) of society as a plurality of citizens valued for their individuality.
Despite the repeated offenses the courts have suffered — especially the highest court, the Federal Supreme Court — , the Judiciary is decisive in preserving democracy against furtive or covert authoritarianism, whose objective is to perpetuate undemocratic rulers in power who do not hesitate to resort to instruments and attributes of the democratic regime itself to ensure some veneer of legitimacy. So, can we expect the Judiciary to be successful in this endeavor?
In a period in which the doubt implicit in this question results from the increase in the possibilities of action, a starting point for an answer is to know whether the protagonists of the political and judicial life are capable of understanding the current institutional disarray from its basic components: the relations of strength, authority, command, and obedience. Another starting point is the idea that predictions regarding the future are inversely proportional to their knowledge. The more we talk about the future, the less we know about it.
One way to get around this dubious scenario with a minimum sense of security is to think about the conditions that can preserve the Federal Supreme Court from the worst. Moreover, that, in my view, requires the Federal Supreme Court’s justices to be aware that the institutional strength of the court is based on its ability to (i) preserve impartiality, (ii) resist pressure, (iii) not to make concessions, (iv) be attentive to governability, (V) know how to choose the appropriate legal means to achieve certain ends, (vi) carefully evaluate the consequences of their decisions, and (vii) act with courage and firmness in defense of the Constitution. These seven points are our best guarantee.