As the United States was embroiled in debates about Donald Trump’s supreme court nominee, tensions ran high in Brazil where Bolsonaro nominated a judge to the Supreme Federal Court (the ‘Supremo Tribunal Federal’ also known as the STF). However, while Trump’s pick, Judge Amy Coney Barrett, was criticized for her hard-liner conservatism, Bolsonaro’s, Judge Kássio Nunes Marques, was considered too left-wing for his supporters.
Jair Bolsonaro has previously expressed intense contempt for the current composition for the STF. During his presidential campaign Bolsonaro condemned the court, calling it a leftist swamp and saying he would expand the number of justices from 11 to 21 if he was elected in a bid to change the composition of the court. Once he was sworn in as President, he even took part in a rally, calling for the dismantlement of the STF. However, his tone shifted once he was elected and realized the impact he could have by appointing two justices.
There is no term length in the STF, but there is a mandatory retirement age of 75. José Celso de Mello Filho, the Judge Kássio Nunes Marques is to replace, announced his early retirement for 13 October, before the limit date of 1 November; and current justice Marco Aurélio Mello is scheduled to retire on the 12 June 2021. Thus, Bolsonaro has two opportunities during his term to shape the court’s composition.
Most Brazilian Supreme court judges base their decisions on their own personal principles, not precedent or existing case law.
This gives unconceivable power to the judges, referred to as ministers or ‘ministros’ in Brazil. It means that the composition of the court and their political, moral and economic values are one of the sole components that determine the verdict the STF reaches. Some rulings are so contrary to precedent and existing laws that many say ministros in Brazil act as quasi-legislators; making it another political body as opposed to a judicial one.
This may explain the precariousness of the STF in Brazil compared to other supreme courts – while many may disparage the conservativism in the American supreme court, few would suggest the court itself is at fault. Some consider the STF to not be representative of the Brazilian people, but unlike other institutions around the world this isn’t because it represents an old-fashioned political establishment composed of the wealthy.
Brazil’s STF is surprisingly progressive, providing stark contrast to an ultra-conservative government.
The STF has sanctioned civil unions between same-sex individuals, abortions in cases of babies with brain malformations, racial quotas in universities and have criminalized homophobia in the last ten years. All of which represent major change in a very religious and traditionally conservative society.
Bolsonaro’s choice, then, was expected to try to swing the pendulum back to a more conservative dominant majority. He has previously boasted that he would nominate someone who is “terribly evangelical”, however his recent pick of Kassio Marques, a Catholic with no obvious alignment with conservative traditions, and who was appointed to the Federal Appeals Court by Dilma Rousseff (a Worker’s Party politician and former-President), surprised virtually everyone in the country, including Judge Kássio Nunes Marques himself.
This decision swept the country up in disarray; with ‘Bolsonaristas’ (hard-liner Bolsonaro supporters) tweeting under the hashtag #BolsonaroPetista, which became one of the top trending hashtags on social media in Brazil. ‘Petista’ refers to a person who supports or is affiliated to the Workers’ Party (the primary socialist party in Brazil) and has become a wide-spread insult in recent years, reflecting the dissatisfaction in the country with the party, and the former-Presidents, Lula and Dilma.
In Brazil nowadays everything seems to come back to the Lava Jato scandal (an operation that uncovered corruption at the highest levels of the Brazilian government) and this supreme court nomination isn’t any different. The supreme court is currently deadlocked in several Lava Jato lawsuits and Bolsonaro’s pick is posited to decide whether or not the court will support various aspects of the operation.
Judge Kássio Nunes Marques is a Lava Jato sceptic and a critic of the so-called arbitrariness of the task force. This decision pleased The Centrão, a notorious bloc of traditional centre-right parties in Congress, many of whom are being investigated themselves by the Lava Jato task force. Bolsonaro, looking forward to the 2022 election, has recently tried to court this bloc, and Kássio Marques’ nomination may be another step in that direction.
The consolidation of the right is one of Bolsonaro’s upmost goals in the years before his re-election campaign.
There are currently 40 parties in Brazil, and most governance is done through coalitions. Bolsonaro ran with the support of the Social Liberal Party (PSL) and the Brazilian Labour Renewal Party (PRTB), while his opponent, Fernando Haddad, had more than four parties supporting him.
The Brazilian presidential elections occur in two parts; the two candidates with the most votes in the first round face off in a second round of voting. The political establishment is, thus, particularly volatile compared to other democracies that are defined by two or three dominant parties. However, it would be fallacious to say Brazilian presidential elections were always this unpredictable.
Brazil’s democracy is still in its infancy; the first presidential election under the New Republic occurred in 1989. In the three decades to follow, the presidential elections were defined by a struggle between the Brazilian Social Democracy Party (PSBD) and the Workers’ Party (PT), or Lula to be more precise. He ran for president every year until 2010, when he finished his second presidential term and handed the reigns over to Dilma Rousseff.
The results of the 2018 presidential elections, thus, was a huge shock to the system, with Bolsonaro, at the time a member of the Social Liberal Party (PSL), winning the elections and upsetting the traditional PSBD and PT rivalry. It is difficult to know what will now happen in 2022, considering Bolsonaro not only left the PSL but also started his own party in 2019, Alliance for Brazil (ALIANÇA).
Bolsonaro not only needs to beat a presidential candidate in the second round of voting (which will most likely be a representative from the left), but also must stand out as the obvious conservative choice in the first round; and if he is to succeed at this, he will need the Centrão’s support.
Bolsonaro’s support of a Supreme Court nominee that is suspicious of the Operation Lava Jato, thus, not only protects politicians of the old guard that are being menaced by allegations of corruption, but also helps his own re-election prospects. This is in-line with his attorney-general Augusto Aras’ work campaigning to rein in the Lava Jato investigation, which has lost steam in the past two years amid mounting claims of political bias and operational over-reach.
Bolsonaro recently said, “I do not want to end Lava Jato. I’ve already put an end to Lava Jato, because there is no longer any corruption in the government.”
Some political commentators say that the Lava Jato Operation was tolerated so far because it focused on left-wing politicians (most notably the PT party and, notoriously, Lula). However, with the task force turning its attention to more conservative politicians, including Bolsonaro’s own son, Flávio Bolsonaro, a senator, Brazil is seeing a slow but steady clampdown on the Lava Jato operation.
A crackdown is unlikely to occur all at once, as the task force has enjoyed wide-spread support in the country. Yet, Bolsonaro and the political elite’s slow but steady moves seem to show a move towards suppression of the operation.
Bolsonaro has refuted criticism by saying his second nominee will be evangelical, and that Judge Kássio Nunes Marques reflects conservative values; asserting that he is against abortion, for the right to bear arms and ‘defends family values’.
This choice is unlikely to cause his most ideological supporters to abandon him in the long-term, but it does illuminate the tightrope Bolsonaro is currently trying to tread, attempting to appease his most ideological supporters and the more moderate conservatives in Brasilia and the country.