Photo: Fellipe Sampaio /SCO/STF

Professors Oscar Vilhena Vieira, Rubens Glezer and Ana Laura Pereira Barbosa of the FGV Sao Paulo Law School recently wrote a paper analyzing the Federal Supreme Court’s response to lawsuits questioning attacks on the Constitution during the last president’s administration. The study was published in Revista Novos Estudos, a journal associated with the Brazilian Center for Analysis and Planning (CEBRAP). Titled “Supremocracy and Sub-Legislative Autocracy: The Behavior of the Brazilian Supreme Court During the Bolsonaro Administration,” the paper analyzes relations between the president of the Republic and the Federal Supreme Court between 2019 and 2022.

The data reveals that after a first stage marked by more conciliatory rhetoric, the Federal Supreme Court became increasingly willing to curb government acts. This resulted in ever-intensifying attacks on the court by President Jair Bolsonaro and more assertive responses by the court’s justices.

The article is the result of research that combined a broad empirical survey with the application of a conceptual framework developed over the last four years in a series of debates inside and outside Brazil. These debates took place as part of the Rule of Law and Authoritarian Legalism Research Project (PAL Project), which is looking at how the law can be used to both advance and resist authoritarian movements.

“The Bolsonaro administration took many sub-legislative, administrative and para-institutional measures, thereby largely managing to circumvent the control of Congress. For this reason, the onus of curbing unconstitutional excesses fell primarily on the judiciary. The Federal Supreme Court had a particularly important function, given that it already had a central role in arbitrating commonplace conflicts in the Brazilian political system. However, at the beginning of the Bolsonaro administration, the Federal Supreme Court was weak, having just emerged from a political crisis that had significantly harmed its reputation,” the researchers write in their study.

After examining the literature and global discussions on the role of law and institutions in the crisis of democracy, the PAL Project compiled case studies on Brazil and then compared the Brazilian experience to that of other countries in the Global South, in particular South Africa and India. The project, launched in 2020, is coordinated by professors at the FGV Sao Paulo Law School, the University of Oklahoma and the University of Cape Town. In all, it involves 17 teaching and research institutions on four continents. 

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