Brazil: The STF, Congress, and Checks and Balances

By Matthew M. Taylor

Supreme Federal Tribunal (STF), Brasilia / Photo credit: R. Motti / / CC BY-NC-SA

Supreme Federal Tribunal, Brasilia / Photo credit: R. Motti / / CC BY-NC-SA

Brazil’s last resort for political minorities and opposition parties – the Supreme Federal Tribunal (STF) – is facing growing pressures on its independence.  In Brazil’s famously hyper-presidential system, the executive branch dominates Congress through an elaborate system of presidential decrees, budgetary pork, and cabinet appointments.  Since 1990, no president’s party has ever held more than one-fifth of the seats in Congress, yet presidents – using a diverse array of carrots and sticks – have routinely been able to rely on support from coalitions that surpass three-quarters of the Chamber and Senate.  As Brazil’s high court, the STF has been the only channel through which majoritarian decision-making has been contested.

In recent weeks, Congress has bluffed its way onto the scene: the constitutional committee in the lower house voted to curb the courts via a proposed – but ultimately shelved – constitutional amendment that would restrict the STF’s powers of constitutional review, subjecting decisions that Congress finds objectionable to public consultation.  The reaction has been deafening.  The press has drawn parallels to similar moves in neighboring Argentina and Venezuela.  Eminent political analyst Sérgio Abranches claimed that this was further evidence that an “oligarchic civil coup” was under way.

Some judicial actions have indeed been provocative, such as decisions on contentious issues such as political party formation and the distribution of oil royalties. But the Congress’ effort to curb the court has left a bitter taste – because it points both to the increasing politicization of judicial decision-making and its potentially destabilizing effects on the political system.  The fact that the amendment proposal had support even from some members of the opposition underscores the depth of congressional resentment of the STF’s proactive role.  The Court appears likely to face continued pushback from Congress, with overwhelmingly political objectives.  But some elements of the proposed reform may be worth thinking about, such as restrictions on the issuance of injunctions by single members of the Court.  Too often these injunctions have been seen as high-handed and lacking in the legitimacy that decisions by the full Court carry.

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