Opinion: Packing Brazil’s Supreme Court?

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – Just as football was threatening to steal all the headline space from politics, presidential candidate Jair Bolsonaro decided to throw a rock in a pond and see where the ripples went.

During an interview, Bolsonaro said that, if elected, he would increase the size of Brazil’s Supreme Court (STF) from 11 to 21 members, by appointing another ten. His justification is that recent decisions have been embarrassing, divisive and politically motivated, so he would appoint jurists who are independent.

Perhaps coincidentally, Brazil has gone down this path before. In 1965, the military junta, unhappy with some STF decisions that continued to assert judicial power, increased the number of justices from 11 to 16. A few years later, however, the junta decided to reduce the number to the original 11.

As it happens, the practice of meddling with the membership of the supreme tribunal of a nation has a long history. In 1935, unhappy with some Supreme Court decisions that declared New Deal legislation unconstitutional, U.S. President Roosevelt proposed adding one new Justice for every one that reached the age of seventy, up to a total of fifteen Justices. After the proposal was made, the U.S. Congress simply ignored it, letting it die of old age without coming to a vote.

In 2004, Venezuela’s ruler Chávez successfully increased the country’s Supreme Court from 20 to 32 members, again because he was unhappy with some decisions of the court. More recently, autocratic leaders of Hungary, Poland and Turkey have also taken measures designed to reduce the power of their supreme tribunals.

In the U.S., the size of the Supreme Court is not in the Constitution, it is determined by statute passed by Congress. In Brazil, however, the 1988 Constitution expressly states that the STF shall comprise eleven judges (called, strangely enough, “ministers”). Thus, Bolsonaro would face quite a hurdle if he decided to proceed down this road.

A Constitutional Amendment requires the positive vote of sixty percent of all the members of both houses of parliament, in two separate votes. This is theoretically possible, because Brazil has enacted over 100 Amendments to its Constitution during the past thirty years. But that requires a parliament where the President has a working super-majority, which is highly unlikely to be the case if Bolsonaro is elected.

Moreover, Brazil’s 1988 Constitution has a provision (Article 60 Section 4) which absolutely forbids parliament from even considering a vote on any matter which would deny or limit the separation of powers. It is well established that such a provision (called a “cláusula pétrea” meaning “cast in stone”) is enforceable by the STF itself.

The STF has already declared unconstitutional several amendments, duly passed by parliament. Bolsonaro’s proposed amendment would surely suffer the same fate, as the STF will not appreciate having its authority called into question by populist politicians.

It is undeniable that today the STF is in disrepute, but Bolsonaro’s autocratic “cure” would be worse than the disease. So, for the near future, we are likely to have an STF of 11 “ministers” who continue fiercely divided along juridical, political and philosophical lines, issuing narrow 6-5 decisions on controversial topics.