‘Dialogue’ as strategic judicial resistance? The rise and fall of ‘preemptive dialogue’ by the Brazilian Supreme Court

ABSTRACTHow can high courts resist elected leaders with antidemocratic agendas? In this article, I present the Brazilian case as an example of the multiple resources and strategies available in the judicial toolbox to drive interbranch relations in contexts of democratic erosion. While the autonomy of the Brazilian Supreme Court stands out in Latin America, it became a recurring target of right-wing radicals since the ascension of would-be authoritarian Jair Bolsonaro. In this article, I address a preemptive resistance strategy adopted by the court's leadership from the presidential elections of 2018 up to the middle of the pandemic. I establish the rise and fall of ‘preemptive dialogue’as a strategic move, drawing data on off-bench behaviour from a major Brazilian newspaper’s coverage, official statements, and court insertions in social media platforms. While this strategic move was consistent with the historical trajectory of the court’s ‘accommodation’ pattern in interbranch relations, its downfall signals a break with the past. Likewise, it advances the need of adaptive judicial tactics considering the diffusion of court-curbing within electoral democracies with dissimilar historical backgrounds. The conclusion emphasizes the relevance of the case to comparativists addressing judicial resistance in contexts of democratic backsliding.KEYWORDS: Judicial resistanceinstitutional dialogueoff-bench judicial strategiescourt-curbing AcknowledgmentsI am grateful to the anonymous reviewers and the editors of this symposium for their comments. Previous versions were presented in the ECPR 2023 Workshop on Judicial Resistance and the LASA 2023 Conference. I thank all the participants on those occasions, as well as Katarína Šipulová, Øyvind Stiansen, Benjamin Holgado, Eugenia Artabe, Campbell MacGillivray, Diana Kisakye, David Kosař, and Surbhi Karwa, for their comments and suggestions.Disclosure statementNo potential conflict of interest was reported by the author.Notes1 Even if politically constrained during the authoritarian regimes of 1930–1937 (see Gaspari, Citation2019) and 1964–1985 (see Vale, Citation1976; Recondo, Citation2018; Torres, Citation2021). Osiel (Citation1995) claims that, from a comparative perspective, even under the military dictatorship, the STF was able to be more consequential than its counterpart in Argentina.2 Moreover, one could expect that under such circumstances, a would-be authoritarian would ‘rely on informal means of interference such as harsh rhetoric, defamation of judges on social media, or joining demonstrations against these institutions’ (Llanos & Weber, Citation2022).3 Tomini et al. (Citation2023, p. 4) show indeed that judges and courts can perform the important role of active institutional resistors in contexts of democratic backsliding, as they ‘can overturn laws or decisions taken by the government and challenge an attempted abuse of power.’ Here, however, my focus is located in the strategies and actions of judges aimed at preserving a court's autonomy within the political system.4 See Bogéa and Da Ros (Citation2022) for a conceptual framework distinguishing court-curbing measures according to intensity and target, and for a theoretical account that emphasizes the relevance of both attempted and implemented actions.5 Folha de S. Paulo is a national newspaper based in Brazil’s biggest city, São Paulo, with a nation-wide range of subscribers. It is widely recognized historically as one of the three most circulated and influential national newspapers for several decades, and while it is not associated with any specific ideological vein, studies show it highlights hegemonic corporate interests in Brazil (Carvalho, Citation2006). It has been extensively used for research on the Brazilian Judiciary and the STF (Oliveira, Citation2004, Citation2017). The newspaper provides a free-access research engine for its historical archives. I collected and examined 274 pages mentioning Chief Justice Dias Toffoli and President Bolsonaro’s ‘dialogue’ in the span between 2018 and 2020. From the articles examined, I followed the trace of evidence in additional media outlets, diffusing the risks of overemphasizing a single newspaper perspective.6 The Chief Justice is chosen among peers for a two-year term, and tradition stands that the role is always performed by the Justice that occupies the position for the most time (for a rare historical exception during the military dictatorship, Recondo, Citation2018). In Office, she accumulates functions related to the administration of the Court and judicial decision-making powers, including the control of the agenda, determining the plenary docket (Esteves, Citation2020).7 The full report of Turollo and Casado on that day (Citation2018: A15) mentioned the political savviness of Toffoli and his ability to cut the direct ties to the leftist Worker's Party, despite his past career associated with it.8 For an earlier and broader account on this issue, see Guarnieri and Pederzoli (Citation2002).9 The day after the election, Folha de S. Paulo (Turollo Jr. et al, Citation2018) reported the expectations of major judicial actors on Bolsonaro's relationship with the Court, stating the following on the recently-nominated Chief Justice: ‘The president of the STF (Federal Supreme Court), Minister Dias Toffoli, has told interlocutors, however, that he believes that Bolsonaro will dialogue, because he has long experience in public life, of almost 30 years in the Chamber of Deputies, and knows that no one governs alone.’10 Less than two months later, Jair Bolsonaro announced Azevedo as his future Ministry of Defense. Dias Toffoli declared that the President-Elect consulted with him before the announcement (Turollo Jr., Citation2018), and kept the placement for a military advisor, nominating a retired general for the role. In an interview to Folha de S. Paulo (Alegretti, Citation2018), he stated that the transition from the Court to Government would strengthened the Court-Executive relationship because he had established ‘a channel’ during the two months he worked for the Chief Justice's office.11 A specific resistance strategy adopted by the Court's leadership raises concerns in this respect. Turollo and Bergamo (Citation2018, p. A11) reported on December 6th, 2018, that Dias Toffoli activated the Public Ministry to file a complaint against a citizen that offended Justice Ricardo Lewandowski verbally during a commercial flight. In light of the growing zeitgeist of anti-court popular sentiment, it is hard to define if the measure was founded solely on self-protection, or if it may generate undemocratic side-effects.12 In a long piece published by the London Review of Books, Perry Anderson (Citation2019) calls Dias Toffoli a ‘former legal errand boy of the PT and arguably the most despicable single figure in today's political landscape’ due to this move.13 As an example, Carvalho (Citation2019, A10) reported an informal call by Chief Justice Dias Toffoli to the new President of the Senate, Davi Alcolumbre, right after his contentious election (which involved a Supreme Court decision on legislative procedures). The same newspaper recalls the two investigations against the Senator for electoral crimes in the Court's docket.14 An example came late in October, when the President tweeted a video comparing the Court to a hyena, and himself to a lion (Landim et al, Citation2019). This generated further attacks from his constituency. Just two days later, Linhares (Citation2019) reported that Bolsonaro supporters carried a banner saying ‘STF hyenas’ outside of the premises where the Chief Justice was giving a lecture defending a cooperative relationship between the branches of Government.15 Turollo (Citation2018: B2) reported that Toffoli postponed the appreciation of a legal case on the constitutionality of a policy favored by Bolsonaro against the ‘ideologization’ of schools. The postponement was reportedly caused by his new approach to interbranch relations. This happened just a week after his first meeting with Bolsonaro, in the spirit of ‘dialogue.’16 For criticism on the legal basis for such a measure, see Falcão (Citation2019). Turollo (Citation2019: A4) reported internal divergences among Justices of the STF on the legal correctness of the measure, but it did not cite any opposition by the Government. At the same time, it described the President of the Senate's intention not to proceed with an Investigation Committee on judicial activism proposed by right-wing senators.17 The move was relatively silent at first beyond the legal community, but would prove consequential in the future, including the imprisonment of one of Bolsonaro's closest allies in Congress (cite), a number of his supporters in social media, and eventually even the investigation on the President himself, propelled by his criticism on the electoral system and allegations of fraud.18 Oliveira and Madeira (Citation2021, p. 35) register that ‘Based on the data analyzed, the Federal Supreme Court opposed the President's measures on issues related to the pandemic and, in this sense, behaved differently from what the analysis of the judicialization of politics in previous periods demonstrated.’