University of São Paulo: Judicialization of politics is the result of how the 1988 Constitution was formulated
The research group Judiciary and Democracy (Jude) , from the Department of Political Science at the Faculty of Philosophy, Letters and Human Sciences (FFLCH) at USP, has developed a study agenda on judicial and control institutions in contemporary democracies, in particular the Brazilian one , focusing on the Federal Supreme Court and the judicialization of politics.
They seek to understand the interference between the three Powers, the process of choosing and appointing judges by the Executive and the approvals in Congress. “The question of the judicialization of politics, this is the central aspect that mobilizes us”, explains Professor Rogério Bastos Arantes, from the Department of Political Science at FFLCH and coordinator of the group.
Jude is a political science group made up of people from a variety of fields—including the social sciences and law—who approach issues from the perspective of political science. As the professor explains, “political science is concerned, above all, with the ways in which power is exercised in political regimes in general, but in democracies in particular”.
Therefore, the focus of the studies is the interface maintained between the judicial institution and the exercise of political power. The professor explains that Brazil is a very rich example in this area, since the judicial bodies, the Public Prosecutor’s Office, the Federal Police and even bodies that have judicial features such as the Court of Auditors, exercise control over national political activity.
“Every day we have news in the newspapers of a judicial decision”, he recalls. He further explains that “these institutions act decisively on issues that are very relevant to the country, to democracy, but also to the economy, to society, to customs.”
Judicialization of politics
According to Arantes, the term judicialization of politics indicates that there may be something wrong and that the border between the Powers is blurring, something that should not happen. For him, the origin of the term lies in estrangement. “The 1988 Constitution, which provided a whole institutional terrain, which promotes this interaction”, he explains. Thus, the control and decisions characterized as interference or judicialization do not occur, most of the time, because of the judges’ voluntarism or because politicians have the power to appeal to the Judiciary – something very common in the country –, but because the Constitution itself designed it. .
More than that, the Federal Supreme Court has the power to control the constitutionality of laws passed by Parliament and to approve, question and demand policies proposed by the Executive Branch, exerting enormous influence over politicians (deputies, senators, mayors, governors and even presidents).
This means that a court of justice made up of 11 unelected ministers has this enormous power to say whether the law passed by Congress is constitutional or not, based on their interpretation of the law. This powerful mechanism can lead to the judicialization of politics. “In Brazil, there is the possibility that the Judiciary controls the laws, controls public policies and controls politicians, so it means that the entire cycle of democratic politics is under the control and daily surveillance of these judicial bodies”, says Arantes.
The choice of ministers and the exercise in office
One of the great questions of political science is: how do STF ministers behave judicially and vote on issues in court? This questioning is further exacerbated when groups of judges differ in opinion on certain topics. On this subject, it is important to remember that ministers are appointed by presidents and questioned in Congress, only then are they approved.
After that, they gain a lifetime position that, in theory, protects them from all kinds of external interference in decision-making. “What guides them when deciding whether something is constitutional or not? What guides them when deciding on the conviction or acquittal of defendants accused of corruption?”, asks the professor. “If it is possible to identify factors that determine this behavior [of ministers], the president and senators know that too. And, because they know that, they will handpick ministers to act in a court of law”, he says.
The choice of a STF minister is political, as those in power want to be able to influence the agenda and the decision-making process so that, in the future, they can protect themselves from possible judgments and investigations by the court. The entire political chess of forming a support base in Congress also has to be taken into account.
This year, with the retirement of Ricardo Lewandowski and Rosa Weber (current president of the STF), two chairs will be renewed. It will be up to President Luiz Inácio Lula da Silva to appoint two new ministers. Both Lewandowski and Rosa Weber were nominated by the PT, the former by the current president and the latter by his successor, Dilma Rousseff.
Is an adjustment to this mechanism necessary?
“I particularly like this mechanism. It gives the president great freedom to choose, because the constitutional requirements are not very demanding. All you need is for the person to have legal training, an unblemished reputation and a minimum age that you can indicate. So, he could have pursued a career as a judge or even a lawyer,” says the professor. The president, in turn, needs to anticipate whether the Senate will receive this name well or badly. However, he recalls that “in the political history of the country there is no episode in which a presidential nomination for the Federal Supreme Court was rejected by the Senate of the Republic”.
Another point raised by the interviewee was the trajectory of ministers before their appointment , something of great importance both at the time of appointment and throughout their performance in office. An example of this is the performance of ministers in cases of corruption, such as Mensalão. “Characteristics of the professional trajectory explain how they voted in that succession of votes in that judgment. So looking at their past matters too. It’s not just a matter of the president’s preference,” he explains.