Analysis: How Justice Celso de Mello’s Early Retirement Can Influence His Succession

RIO DE JANEIRO, BRAZIL – Those who today see Justice Celso de Mello advising his younger peers or sending messages to the country’s top authorities assume he is doing so because he is the doyen – the oldest member – of the Supreme Court. The voice of experience.

But the role of “advisor” has followed him throughout his career. In the 1970s, newly sworn in as a prosecutor in the interior of São Paulo, it was common for him to assist his sister, Maria Aparecida de Almeida Mello, eleven years older, and her colleagues in the state Prosecutor’s Office. They sought him out for some form of voluntary counseling over the phone. He was 25 years old, recently graduated in law from the University of São Paulo, and was already recognized at the time as possessing extensive legal knowledge.

Now, three weeks before turning 75 – the age limit for remaining a civil servant – he will retire from the Court on October 13th. By his own decision, after taking two leaves throughout 2020 to attend to his health. His retirement will leave a void that is difficult to fill and coincides with another decisive succession at the US Supreme Court following Ruth Ginsburg’s death. In both countries there is fear of a potential turning point with succession, which may determine future decision-making.

Mello’s replacement will be appointed by President Jair Bolsonaro and, according to the President’s own words, one of his main qualities is to be “terribly evangelical”. According to observers. Bolsonaro’s preferences are: the Presidential General Secretariat Jorge Oliveira; Justice Minister André Mendonça; Judges João Otávio de Noronha and Humberto Martins of the Federal Superior Court; the Federal Prosecutor General Augusto Aras; and Federal District Court Judge Marcelo Bretas.

Before leaving the post, Mello will be required to attend the virtual trial of a part of the inquiry into whether Bolsonaro tried to politically interfere with the Federal Police to protect his family from investigations. The decision will be whether the President will be required to testify in person or if he can do so in writing. The case, for which Mello is rapporteur, will not be heard until after his retirement and, according to sources in the Judiciary, this could be his reason for anticipating his retirement from office by 20 days. Typically, the replacement of someone leaving the Court inherits the rapporteur tole. In other words, a person appointed by Bolsonaro would be responsible for conducting the investigation against the President.

The argument of these internal judicial observers is that the STF justices are relying on the President’s trouble in finding a name that could be quickly endorsed by the Senate to pass the position on to one of the other nine justices – only the Chief Justice does not receive new cases. As a result, there would be an internal rearrangement to take over this case, preventing presidential interference in the issue.

In addition to the inquiry against Bolsonaro, Mello will leave behind at least two other cases with repercussions in the political arena, one dealing with charges of partiality by ex-Judge Sérgio Moro in convicting ex-president Luiz Inácio Lula da Silva in Operation Lava Jato, and another case that considers whether Senator Flávio Bolsonaro, the President’s son under investigation for embezzling resources from officials, should enjoy privileged jurisdiction.

Balance and wisdom

After 31 years of service, the last 13 as the oldest Court Justice, he is considered the Supreme Court’s “encyclopedia”, a historian of the Judiciary and constitutional law. His opinions tend to include long citations of former constitutions, some of which come from the beginnings of the Republic, and are filled with political and social contextualization. He is defined by jurists as a person concerned with human dignity, an advocate of gender equality and individual freedoms, and a fierce anti-corruption advocate, constantly upholding the right of rebuttal.

His most outstanding personal traits are modesty, discretion – he is rarely seen at social events – his passion for sweets, coffee, fast food and the São Paulo Soccer Club, as well as his deep dedication to his work: he spends at least 14 hours a day in his office. “I feel a need to explore all of the available time,” he told TV Justiça in 2009 in one of the rare interviews granted throughout his career as a Justice. He prefers to speak through the case records. In one case, he sent a direct message to Bolsonaro, who was trying to re-issue a Provisional Measure that had already been rejected by Congress. “This understanding is disturbing because it is clear that there still seems to be, in the intimacy of power today, a residue of undisguised authoritarianism when it transgresses the constitutional authority of any coefficient of ethical-legal legitimacy.”

Among those who follow the higher courts of Brasília it is common to hear the following sentence from those who had their interests challenged by Mello: “even when he decides otherwise there is nothing to complain about”. Although he is not a teacher, in fact, he makes a point of lecturing on his extensive and well-founded decisions. “He can’t resist the temptation to adopt this educational approach,” assessed ex-Prosecutor General Roberto Gurgel.

For some, he is considered the STF’s balancing point. “Whoever studies his opinion is unable to discern whether he is more progressive or more conservative. He’s a justice like all should be,” said attorney Luis Henrique Machado, who defends dozens of defendants charged with corruption who have already been either convicted or acquitted by Mello. In an interview granted in 2009, ex-president José Sarney, who appointed him to the Supreme Court, defined Mello as “an icon of what a Supreme Court magistrate should be”.

Organizer of the book “Reforma política Brasil república – em homenagem ao ministro Celso de Mello”, attorney Erick Pereira summarized the magistrate’s career as follows: “At a time in which we are experiencing a dogmatic division between punitivism and garanteeism, he is the Constitution.” In recent years, the Brazilian judiciary has been split into groups considered supporters of anti-corruption operations, such as Lava Jato, and those who typically decide in favor of the defendants in these cases. In the majority of these trials one can have an indication of how each justice will behave. The doubt often lies in Mello’s position.

Between the lines

Born in Tatuí, in the interior of São Paulo state, Mello reached the STF in 1989, when the Magna Carta was only one year old. Having begun his life as a Justice with a newly created Constitution, he delved deeper into it. “He has the ability to understand what is written in between the lines of the legislator’s determination in drawing up this Constitution,” says Pereira.

Before his appointment to the STF, Mello was a prosecutor in São Paulo. For criticizing acts of the military dictatorship and opening investigations against police officers for arbitrary arrests, he took longer than usual to be promoted. In the 1980s, when he reached the position of prosecutor, he was on the Prosecutor’s Office three-name list to become a judge at the São Paulo Court of Appeals on three occasions, but was bypassed by other peers. He was appointed by Sarney after working for the Federal Solicitor General between 1986 and 1989.

Now living in a period in which Brazil is ruled by admirers of the military dictatorship, he will leave the Court in the hopes that his teachings will continue to dictate the values of freedom. “His decisions will remain a great legacy in upholding democratic values for many generations,” said attorney Erick Pereira.

Source: El Pais