{"id":20534,"date":"2024-04-22T14:01:49","date_gmt":"2024-04-22T17:01:49","guid":{"rendered":"https:\/\/fundacaofhc.org.br\/?post_type=debate&p=20534"},"modified":"2024-11-12T15:14:30","modified_gmt":"2024-11-12T18:14:30","slug":"justices-barroso-and-jobim-debate-the-role-of-the-supreme-court","status":"publish","type":"debate","link":"https:\/\/fundacaofhc.org.br\/en\/debate\/justices-barroso-and-jobim-debate-the-role-of-the-supreme-court\/","title":{"rendered":"Justices Barroso and Jobim Debate the Role of the Supreme Court"},"content":{"rendered":"\n

The increasing prominence of Brazil\u2019s Federal Supreme Court in politics and society was the focus of an in-depth\u2014and rare\u2014debate between the current Chief Justice, Lu\u00eds Roberto Barroso, and Nelson Jobim, who led the Court from 2004 to 2006. The event took place at the Funda\u00e7\u00e3o Fernando Henrique Cardoso auditorium in S\u00e3o Paulo on April 22. Also, it featured constitutional expert Oscar Vilhena Vieira and political scientists Marta Arretche and Sergio Fausto.<\/p>\n\n\n\n

In his opening speech, which lasted around 30 minutes, Chief Justice Barroso explained that the Court\u2019s judicial prominence in Brazil resulted from a comprehensive Constitution and a constitutional framework that allows easy access to the country\u2019s highest court for various actors within Brazilian society. <\/strong><\/p>\n\n\n\n

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Lecture by Chief Justice Lu\u00eds Roberto Barroso at the Funda\u00e7\u00e3o FHC auditorium in S\u00e3o Paulo.
Photo: Vinicius Doti<\/strong><\/figcaption><\/figure>\n\n\n\n
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\u201cThis was a choice made by the constituent assembly members who drafted the 1988 Constitution. The current Constitution addresses matters that, in most countries, are left to politics to resolve. It is the responsibility of the Federal Supreme Court to be the guardian of our comprehensive Constitution. In fulfilling this role, the Court will inevitably displease many. Public opinion polls cannot ensure the Court\u2019s prestige. You can\u2019t please everyone.\u201d<\/em><\/strong><\/p>\n\n\n\n

Chief Justice Lu\u00eds Roberto Barroso<\/em><\/p>\n<\/blockquote>\n\n\n\n

The Chief Justice defended the Court\u2019s actions in the face of threats to democracy and the rule of law during the Bolsonaro administration (2019\u20132022), which culminated in the attacks on the headquarters of the three branches of the federal government on January 8, 2023.<\/p>\n\n\n\n

\u201cWe faced the shadows, and we ran the risk that they would prevail. In a very complicated situation, the Federal Supreme Court had to take the lead in this battle against extremism. The highest court is subject to criticism, like any institution, but it does not bow to the destructive forces threatening democratic institutions. Democracy has room for liberals, progressives, and conservatives, but it has no place for intolerance,\u201d stated Justice Barroso.<\/p>\n\n\n\n

At the conclusion of his presentation, Chief Justice Barroso reminded the audience that \u201cBrazilian society is highly polarized, radicalized, and intolerant\u201d and proposed a \u201cminimum constitutional agenda\u201d aimed at uniting people around the fundamental rights outlined in the Constitution.\u201d His proposed priorities include combating poverty and social inequality, promoting economic growth and increased productivity, valuing private initiative, prioritizing basic education, investing in science and technology, enhancing public security, expanding basic sanitation, providing affordable housing, and protecting the environment.<\/p>\n\n\n\n

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In a very complicated situation, the Federal Supreme Court had to take the lead in this battle against extremism.<\/p>\n Lu\u00eds Roberto Barroso, Chief Justice of Brazil\u2019s Federal Supreme Court<\/cite>\n<\/blockquote>\n\n\n

Supreme court must be more cautious and exercise self-restraint, says former Chief Justice Jobim<\/strong> <\/h3>\n\n\n\n

During the audience Q&A portion of the debate, former Chief Justice Nelson Jobim\u2014who also served as Minister of Justice (1995\u201397) and Minister of Defense (2007\u201311)\u2014requested to speak:<\/p>\n\n\n\n

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\u201cEveryone agrees with the agenda that Justice Barroso is proposing. The problem is not what, but how. That\u2019s where the disagreements begin.\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n

\u201cBrazilian politics has lost its ability to resolve conflicts. As a result, it started turning to the Federal Supreme Court to mediate political disputes. Today, everyone knows who the Supreme Court justices are, but no one knows the party leaders in the National Congress, who, in the past, were responsible for building legislative majorities to pass key projects for the country,\u201d said Mr. Jobim, who was a federal deputy from 1987 to 1995 and played a critical role in the Brazilian Constituent Assembly (1988\u201389). <\/strong><\/p>\n\n\n\n

\u201cWhen the Supreme Court is called upon to arbitrate issues that politicians should resolve, it undermines the role of politics. Former Justice Teori Zavascki (who tragically died in a plane crash in 2016) mentioned this in a ruling where he opposed certain decisions that overstepped constitutional principles, venturing into the \u2018how.\u2019 How is this done? And when someone is deciding the \u2018how,\u2019 those who should be leading\u2014whether in the Legislative or Executive branches\u2014opt not to act to avoid political wear and tear, deferring the matter to the Court,\u201d continued the former minister.<\/p>\n\n\n\n

\u201cHence, there is a need for the Supreme Court to exercise self-restraint. Barroso, I believe there should be consideration within the Court on how to avoid taking definitive action on the \u2018how.\u2019 In my opinion, this responsibility falls to the Chief Justice. So, I would like to ask you: Is it possible for the Supreme Court to adopt a more cautious approach today? Can the Court establish a form of progressive restraint in its actions so that political actors are compelled to fulfill their roles?\u201d Mr. Jobim concluded. <\/strong><\/p>\n\n\n\n

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Celso Lafer, Marta Arretche, and Chief Justice Lu\u00eds Roberto Barroso at the Funda\u00e7\u00e3o FHC in S\u00e3o Paulo – Photo: Vinicius Doti<\/strong><\/figcaption><\/figure>\n\n\n\n

Courtroom politics fuels polarization, warns Marta Arretche<\/strong><\/h3>\n\n\n\n

\u201cWe can\u2019t normalize this discussion because if the defense of democracy becomes a concern for the Supreme Court, it\u2019s already a problem for democracy,\u201d said Ms. Marta Arretche, a full professor in the Department of Political Science at the School of Philosophy, Letters, and Human Sciences at the University of S\u00e3o Paulo (FFLCH-USP). \u201cWe must remain vigilant, as the Brazilian far right, like in other countries, has become electorally competitive, meaning the risk of a democratic setback did not disappear with the defeat of Jair Bolsonaro in 2020,\u201d she added.<\/p>\n\n\n\n

According to Ms. Arretche, political scientists are \u201cfrantically trying to understand what fuels the extreme right. It\u2019s not just a matter of brainwashing people on social media; it\u2019s a deeper and more complex phenomenon.\u201d She outlined three key risks for both the Judiciary Branch and the country.<\/p>\n\n\n\n

The first risk, as Justice Barroso and Mr. Jobim explained, is that political actors have abandoned the legislative arena for legal disputes, relying on the judiciary instead. \u201cDo we have a constitutional design problem here?\u201d she asked.<\/p>\n\n\n\n

The second risk is that when the far right brings issues to the Judiciary Branch, they often anticipate legal defeats but still benefit politically: \u201cWhen the Federal Supreme Court fulfills its role of arbitrating disputes, it inadvertently provides fuel to the far-right political field,\u201d Ms. Arretche explained.<\/p>\n\n\n\n

The third risk she highlighted is that when Supreme Court justices make decisions individually or exercise veto power through review requests, it reinforces the far right\u2019s narrative that the court acts arbitrarily. \u201cThis narrative has already found resonance among a significant portion of Brazilian society, and it could lead to more serious problems in the future,\u201d she warned.<\/p>\n\n\n\n

\u201cWe need to better understand the sources of the far right\u2019s electoral success to provide the right responses,\u201d Ms. Arretche concluded.<\/p>\n\n\n\n

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