By Letícia Casado and Manuela Andreoni – The New York Times
BRASÍLIA, Brazil — When a Brazilian Supreme Court justice blocked the publication of an article about corruption that named a fellow judge, the backlash on social media was swift. Three days later, the justice backtracked and struck down his own decision.
But this and other recent decisions left many worried that the court’s actions were eroding its credibility, hampering its ability to function as a check on government just as the country inaugurated a far-right president, Jair Bolsonaro, who has expressed a disregard for civil liberties.
Mr. Bolsonaro has attacked the news media and voiced admiration for regimes that relied on censorship and repression, such as the dictatorships in Brazil and Chile.
Preserving the court’s role as a “moderating power” in this context is particularly important, said Conrado Hübner, a constitutional law professor at the University of São Paulo.
“At a time when we need the judiciary in general, and the Supreme Court in particular, to resist certain authoritarian intrusions, the Supreme Court is in the mud,” Mr. Hübner said. “It has put itself in the eye of the fire.”
The Supreme Court’s press office did not respond to questions from The New York Times. Chief Justice José Toffoli made only a brief comment, saying “the institutions are working properly.”
This incident comes after years in which the judiciary won plaudits for leading a sprawling corruption investigation that landed once-unassailable members of other branches of government — including a former president and a former speaker of the House — behind bars.
The investigation, which started in 2014, was led by a federal judge, and revealed a scheme involving billions of dollars in graft. The judge who led the anti-corruption crusade, Sérgio Moro, became a symbol of a drive to hold the powerful accountable. He got a rock-star reception in appearances across the country and his face was emblazoned on T-shirts and carnival masks.
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Brazilians poured into the streets in support of the judiciary’s effort and against the political establishment, which emerged widely discredited.
In October, angered by mounting evidence of public funds being funneled into private pockets and suffering from an economic downturn and escalating violence, Brazilians elected Mr. Bolsonaro as president. He promised to be tough on crime and sweep out the old way of doing politics.
Among his first decisions was to bring Mr. Moro into his cabinet as justice minister.
Last month, thousands of Brazilians returned to the streets — this time, to protest a Supreme Court ruling they believed would hamper corruption investigations.
The court had decided that cases in which even part of a bribe went to an electoral campaign could be taken out of the hands of the regional courts, which had proven very effective at pursuing them. They would instead be decided in Brazil’s electoral courts, which have fewer resources.
Protesters waving Brazil’s green and yellow flags and soccer jerseys seemed to echo the anti-establishment marches that propelled Mr. Bolsonaro to the presidency last year. Social media was flooded with hashtags like #STFVergonha, or #ShameSupremeCourt.
Amid the mounting criticism, Chief Justice Toffoli ordered a confidential criminal inquiry into what he called “fake news” and rumors circulating about the Supreme Court and its members, including insults to their honor.
The Supreme Court judge in charge of the inquiry, Alexandre de Moraes, blocked the publication of the article linking Chief Justice Toffoli to players in the wide-ranging corruptions scandal. He also ordered a federal police raid on 10 addresses tied to social media users who had criticized the court.
“I’ve been on the court for 28 years and I’ve never seen a decision like this, to take down an article,” Justice Marco Aurélio Mello said in an interview on Brazilian television. “The Supreme Court was always engaged in preserving freedom of speech. This is a step backward.”
Rulings such as these add to a growing perception that some of the country’s top justices see themselves as untouchable, said Eliana Calmon, a former comptroller of the Brazilian National Counccil of Justice, the body in charge of investigating judges.
“The judiciary acts within a sacred culture that says no one touches any of its members, let alone a member of the Supreme Court,” said Ms. Calmon. “It’s not possible for the judiciary to remain immune to this new reality.”
Justice Moraes eventually allowed the article to run, but the inquiry continues.
The decline of the court’s credibility comes from the perception that the law is secondary for the justices, and that they are using their power to protect themselves and their allies from scrutiny — including the people they are supposed to hold accountable. It is not seen as an impartial institution, said Mr. Hübner, the constitutional law professor.
In 2017, for example, a report by the Federal Police revealed Justice Gilmar Mendes had at least 22 conversations via WhatsApp with Aécio Neves, a prominent senator, while overseeing investigations of Mr. Neves for alleged corruption and fraud, creating an appearance of conflict of interests. Justice Mendes later closed down two investigations targeting the senator.
In separate statements issued at the time, Mr. Neves and Justice Mendes said their contacts were for professional reasons, including the discussion of a political reform measure. No members of the Supreme Court have been formally accused of receiving bribes or manipulating decisions to favor allies.
Mr. Hübner fears that this erosion of confidence in the court may mean its decisions hold less weight, weakening the government’s system of checks and balances.
“The judiciary as a whole is corroding its own credibility,” said Mr. Hübner. “It could get to a point where it can suffer very serious interventions, or institutional rupture.”
Often the controversies arise when a single judge takes action — suspending a case indefinitely on procedural grounds, or issuing a temporary ruling and then waiting months or even years to put it to a vote by the full court. While allowed under Brazilian law, such actions have prompted allegations of abuse of power from critics.
In 2014, for example, Justice Mendes single-handedly blocked for over one year a decision that would have made corporate campaign donations illegal, despite a majority of his fellow justices already having voted to approve it.
As the court’s credibility faces criticism, some worry it could become vulnerable to influence by Mr. Bolsonaro who, during his electoral campaign, threatened to stack the court with more justices if he saw fit.
Making matters more complicated, only the Senate has the power under Brazilian law to launch impeachment proceedings against Supreme Court justices for political infractions.
But lawmakers accused of committing crimes in office, including corruption, can only be tried in the Supreme Court. Currently, several lawmakers, including the president of the Senate, are the target of inquiries overseen by the Supreme Court.
“The body that is supposed to hold them accountable is in their hands,” said Ms. Calmon. “So there are no brakes to stop the Supreme Court.”
Letícia Casado reported from Brasília, and Manuela Andreoni from Rio de Janeiro. Shasta Darlington contributed reporting from São Paulo.