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Few high-ranking positions have been as underestimated as the presidency of the Federal Supreme Court. Currently, this relevance is undeniable and, at a time of acute political crisis, it can be crucial for the survival of constitutionalism and the democratic regime.
The historical moment places a heavy burden on the shoulders of Minister Luiz Fux, on whom this responsibility will fall from September 2020 to September 2022
The context would be a challenge for the constitutional court of any country. The political crisis continues at an accelerated pace, combined with institutional, economic, electoral and health crises.
At times like this, constitutional cuts are called upon to make difficult decisions, which involve regulating disputes between powers, protecting the health of electoral competition, resolving distributive conflicts and maintaining a balance in disputes between majorities and minorities.
Judging and deciding who wins and who loses in such cases is always exhausting for the court. Given the political nature of the conflicts, the losers accuse the court of bias and partiality.
In the Supreme Court there is a lot of risk and the situation is especially difficult, in large part due to how the court itself has behaved in recent years.
For a constitutional court to confront an executive with authoritarian and populist features, it must have a solid popular perception of legitimacy. This is not the case with the Federal Supreme Court, which was increasingly perceived as a much more political than technical institution.
This perception was fueled by extravagant monochrome decisions, which gave the impression that each minister does what he wants, regardless of what the Constitution says.
Minister Fux himself maintained for years the payment of housing aid to federal judges and members of the Public Ministry without referring the matter to collegiate deliberation.
So many other cases were resolved without collegiate deliberation, with opposite results for similar cases: Lula could not be Dilma’s minister, but Moreira Franco could be Temer’s (both investigated); While Cristiane Brasil was unable to take over the Ministry of Labor, Sérgio Carvalho was able to take over the Palmares Foundation (both with backgrounds incompatible with the function).
The last presidencies of the STF had a great responsibility. Minister Carmen Lúcia publicly opened the conflicts and differences between the Lava Jato ministers and the Second Instance Prison.
Minister Dias Toffoli claimed unprecedented powers of interference in the decisions of other ministers and opened the so-called fake news investigation with questionable legitimacy.
In general, ministers refrained from exercising collective control over the extravagant performance of their peers. Hearing requests (which paralyze the process indefinitely) and impeachment and suspicion decisions (which keep the minister out of trial for unlawful proximity to the cause) are treated as matters of individual conscience.
So much has been done, in the name of so much, and as a result, the court has simply become smaller: it has no support from lavajatistas, nor from Bolsonaristas, nor from the PT, nor from the productive sector nor from the workers. He displeased everyone, in his eagerness to assume leadership and leadership in the political crisis.
Where is the exit? Apparently, for Minister Luiz Fux, the solution would be to remove the Supreme Court from the center of political life. But this is no longer a possible alternative.
The conflicts are numerous and will be brought to the Supreme Court, such as minority rights, public security issues, public finances, administrative, federal, electoral reform and many others that will surely arise. Failure to do so in such matters is to dismantle the court on your own.
For the STF to survive, it needs to regain its reputation and political capital. This requires a control of the trial agenda that balances predictability and which conflicts are worth attrition for.
This requires that the rules of procedure be taken seriously and with it, the president and ministers give up some powers. This requires the creation of a consensus in the court so that each minister stops using his powers at will.
This requires rethinking the relationship of the ministers with the media, increasing transparency in matters of suspicion and impediment in meeting protocols with other political actors.
This requires a constant effort on the part of the ministers to discourage the existence of a judicial lottery within the court. This requires a political effort to regain its technical legitimacy.
That seems to be the size of the challenge: recovering the technical legitimacy of the Supreme Court. Skipping conflicts is simply not feasible. What is feasible is to try to demonstrate as much as possible that the Supreme Court’s decision is not theirs, but rather the application of the rules of the game.
The Supreme must convince himself that he is in the conflict imbued with a spirit of fair play and not catimba. In two years, that road can begin to be built, or completely destroyed.
