The Distinct Role Of The Brazilian Supreme Court

>> Joseph Ledford: Welcome to the Hoover Institution. My name is Joseph Ledford. I'm a Hoover Fellow and the Assistant Director of the Hoover History Lab. Under the directorship of Stephen Kotkin, the History Lab functions as a hub for research on consequential history and pursues a host of initiatives, all aimed at bringing the study of the past to bear on contemporary policy issues.

One of those initiatives is our Student Fellows program. Every year, undergraduates at Stanford join us to undertake individual research projects and organize marquee events like the one you are attending today. Before I introduce the student responsible for today's events, I want to thank our co-sponsors, the Stanford Center for Latin American Studies and the Stanford Constitutional Law Center, for helping support this critical discussion.

The George Shultz Auditorium is the perfect venue for this event. Like Secretary of State Shultz, the Hoover History Lab has great admiration for and interest in our neighbors in the Americas. It is our honor to welcome this distinguished delegation from Brazil to the Hoover Institution. Which includes not only the chief justice, but also over two dozen other federal judges, the attorney general, and the consul general from the Brazilian Consulate in San Francisco.

To introduce our speakers tonight, I want to welcome Felipe Jafet to the stage. In addition to being a student fellow with the Hoover History Lab, Felipe is a junior at Stanford majoring in history and economics. He has a deep interest in constitutional law and just recently returned to us from Washington, DC.

Where he spent the summer working for a law firm on religious liberty issues. More importantly, he was born and raised in Brazil, and from what I hear, he's a pretty good tennis player.

>> Joseph Ledford: Ladies and gentlemen, Felipe Jafet.

>> Felipe Jafet: Thanks, Joseph, for the warm introduction. It's a privilege to be here.

What we're doing here today goes far beyond than a simple conversation. For one, we have the chance to understand the forces and ideals behind an institution. And not just any institution, but an institution that forms the backbone of a democracy. But there's an even more important ideal at play here, and that is what this event means for university.

After all, I've said this before and I'll say it again, the premise and promise of a university is the pursuit of truth. In that sense, conversations like the one we're about to have embody what the university was meant to be. Now, that mission is only achievable because of you guys.

After all, what's the purpose of knowing the truth without anyone to spread it? So I'd like to thank each and every one of you for being here today. Now, that leads me to a few other people that I'd like to thank for making this event possible. First and foremost, I'd like to thank Professor Stephen Kotkin, who unfortunately is not here today.

But who gave me all the support, encouragement, and guidance since day one. I'd also like to thank the Hoover team, especially Lea Limgenco, Hilary Weisfeld, and Joseph Ledford, who did everything behind the scenes, from marketing to logistics, to make this event a success. I'd also like to thank three very special and brilliant Stanford colleagues, Erik Navarro, Thay Graciano, and Bruno Marato, who shared the load day in and day out.

Before I hand this over to Professor Werneck, just let me introduce our two speakers. Chief Justice Barroso is a prolific scholar, author, and attorney. He studied law at the State University of Rio de Janeiro in 1980 and received his LLM from Yale Law School in 1989. He also holds a JSD degree from the State University of Rio de Janeiro.

He is today president of the Brazilian Supreme Court. Professor Werneck is associate professor of constitutional law at Insper in Sao Paulo. He holds JSD and LLM degrees from Yale Law School and LLB and MA degrees from the State University of Rio de Janeiro. He has also written extensively on the role of the Supreme Court and the rise of judicial activism.

In fact, he's been instrumental in my own research. As such, I can think of no one else better to lead us in this discussion today on the distinct role of the Brazilian Supreme Court. Without further ado, ladies and gentlemen, please join me in welcoming Chief Justice Barroso and Professor Werncek to the Hoover Institution.

>> Diego Werneck Arguelhes: I would like to begin by thank you, the Hoover Institution, the Hoover History Lab, and the person of Felipe, for this wonderful invitation to discuss the Brazilian Supreme Court from the perspective of Justice Barroso. As a lawyer, a law professor, and for the last decade, as a Supreme Court judge, Justice Barroso has been central in the trajectory of Brazilian constitutional law since 1988, when a new constitution marked our transition from dictatorship to democracy.

As a scholar, he was already very influential in the 90s, leading a generational call in the legal community to set aside old ideas and fashion new concepts and tools to deal with this new, transformative constitution. Then, in the next decade, he exemplified the power of these new ideas as he litigated key cases of fundamental rights before the Supreme Court, such as the legalization of same sex civil unions, decided in 2011.

And most recently, before becoming the STF's chief justice, Justice Barroso was the chief justice of our Superior Electoral Court, Tribunal Superior Eleitoral, TSE, in a critical moment for our democracy. In that capacity, he directly engaged with former president Bolsonaro's weaponization of mass disinformation against our voting system and judicial institutions.

So this last element points to some common challenges between the US and Brazil. These are two presidential systems with robust mechanisms of checks and balances, including a strong courts empowered with judicial review. These are also systems in which, despite many differences, citizens have in the last decade tackled a difficult question, which was not conceivable ten years ago, is democracy in danger?

Perhaps the most critical and novel aspect of this concern is how it has been carried out through the actions of elected actors. I refer here to the threat of democratic backsliding, broadly understood as incremental processes of regime change led by state actors that threaten the pillars of liberal democracy.

This danger has created an unfortunate common ground between the two systems, Brazil and the US, and is a background I would like to keep in mind for the conversation today. And in this scenario, we could say that the Brazilian court has never been more central, has never been more powerful.

But also, at least since democratization, in the last few years, it has never faced more serious challenges and threats. So, keeping this as the backdrop for our conversation here today, we will explore, through the perspective of Justice Barroso, the distinct roles and challenges of the Brazilian Supreme Court.

I promise I will not speak nearly as much as our speaker. Today but I told Filipe that I would provide a few pieces of context before each question. I will highlight a few characteristics that, in comparative terms, I believe make the Brazilian Supreme Court, if not unique, different from the many other models that you might be familiar with, including the US one.

So, first, it's a massive docket court. It is a powerful multipurpose court. It is a court in which judges wield a lot of individual power, and it is also an open and highly exposed court. So, going to my first question, Justice Barroso, this is a massive court with an incredibly vast docket and heavy workload.

Since 2000, the court has issued more than 2.7 million decisions, according to the official court's website, which has very useful data for scholars and people who are interested in these things. According to the court's website, in 2023, it received around 90,000 new cases. Around 65,000 of those cases were appeals of one sort or another, in which parties were invoking a violation of the Constitution.

The STF is a court of less resort for such claims coming from lower courts only, according to the court, once again, only 4.6% of those appeals, however, were successful in 2023. In that year, the court issued more than 100,000 decisions. Only 17,000 of those 17,000 of those 100,000 decisions were made by collective judges.

The rest were individual rulings, and delegating power to individual judges is one of the main adaptations and features the court has developed over time to deal with this massive document. But my question is, 17,000 is still a lot for 11 constitutional judges whose task is to adjudicate core constitutional questions.

In the same year, for example, the US Supreme Court received around 7000 cases and agreed to decide only 62 of those. So, Justice Barroso, I know that since your first days on the court, you have proposed many internal reforms to make the court more focused on reason, deliberation, on key constitutional issues.

But how to reconcile this vision and this mission and this task with the numbers I just described?

>> Luís Roberto Barroso: Thank you, Diego, it's a pleasure and an honor to be here and in this debate with Diego, who was one of the most brilliant students I had some time ago.

So I think, following Diego's argument, to give you some context, and it's important to understand this distinct role that the Brazilian Supreme Court plays as compared to other courts in the world. And there are many reasons for that, and reasons why the court became, so, I would say, prominent in the Brazilian institutional scenario.

The first reason is that Brazil has a very comprehensive and detailed constitution, like any other democratic constitution in the world, the Brazilian constitution has a bill of rights, it deals with the separation of powers, and it organizes the state, Brazil is a federal state, like the US. However, besides doing that, the Brazilian constitution addresses many issues, many matters that in most part of the world are left to politics.

So the Brazilian constitution also deals with the Social Security system, the tax system, the healthcare system, the educational system, the protection of the environment, with the protection of indigenous communities. It deals with the role of the state in the economy. It deals with family, the protection of the elderly, and so on.

So, in Brazil, matters that in other parts of the world would be deemed political would be treated as a political question. In Brazil, these matters become a matter of constitutional jurisdiction. That's one first reasons why we are involved in so many issues. It's the constitutional design, it's the institutional arrangement that we have in Brazil.

There's a second reason, in Brazil, unlike the US, you can reach the court without the case or controversy requirement. So we do have case for controversy requirement, and we take cases in appeals, however, we also have direct actions. We have several direct actions that can be filed directly before the Supreme Court by several actors.

And then we come to the third reason, there are over 100 public and private actors that can seize the jurisdiction of the court. So the president can do it, the procreator general can do it, the state governors can do it, the Congress can do it, the state legislatures can do it.

All political parties with a representation in Congress can file a direct action before the Supreme Court. The bar association can do it. All national entities, national class entities can, and all national unions can. That means that an issue needs to be very unimportant, so that you cannot find at least one of these actors to file a direct action before the Supreme Court.

So we deal with just about anything you can imagine, from protection of indigenous lands, or research with embryonic stem cell, to the import of tires, or abortion or land conflicts. So, in Brazil, it's much harder to draw precisely the board between law and politics to define properly what is a matter of constitutional interpretation and what is a matter for the legislature.

The fourth place, the Supreme Court in Brazil, has a very broad criminal jurisdiction over all relevant authorities in the country, including all members of Congress. So in 2017, there were 500 criminal cases before the Supreme Court, and, of course, criminal cases against members of Congress or members of the executive bring a lot of attention by the press.

So we are in the press every day and fifth and last reason the sessions at the Supreme Court are broadcast on free to air television, anyone can watch not only the hearings, you can watch the actual deliberation, the exchanges between the justices. So this gives us a kind of visibility that's different from.

Or any other court in the world. And when we decide cases, when we are rendering our opinions, we talk to our colleagues, but we also talk to the general public that is watching. So, it's a totally different design from courts, Supreme Courts, in other parts of the world.

And that's not a choice of the Supreme Court, that was a choice of the constituent assembly back in 1988. Now, moving on to a specific question that Diego asked, this number, 90,000, is a little bit delusional. Among these 90,000 cases, 98 or 99% of the times, we just reaffirm the lower court's decision, so these are not cases that we actually review.

We have the opportunity to do it, but as I said, in 99% of the case, we maintain we affirm the lower court decision. So, from the appeals that we call the extraordinary appeal, we probably decide on full court with the presence of the justices about, I would say, between 200 and 250 cases.

It's still a lot, but these are the important cases we actually discuss and debate. There is a large amount of cases that we decide on what we call virtual plenary, which are decisions that we take online. The rapporteur puts his opinion online, and we all have a week to vote, concurring, or dissenting.

These are usually less important cases. And any justice can remove a case from the online discussion and bring it to the physical planner, as we call. So, it's a bit fictional that we actually decide 90,000 cases, but still we work a lot, and it's a large workload. One thing that we don't have, and that the US Supreme Court has, is the possibility of saying, I'm not deciding this case because it's not ripe yet.

We don't have this power, this kind of a political power, but the rapporteur or the chief justice can postpone a judgment for as long as he wants. In my case, I usually don't postpone anything except one case, abortion. Because everyone knows I'm in favor of decriminalizing it, because this is a position I have defended before the Supreme Court as a lawyer.

But 82% of the Brazilian population is against, and I'm not sure about my colleagues. So it's a little bit too counter majoritarian at this point to decide this case. So, I'm trying to lead a discussion by saying, you can be against abortion, you can avoid doing it, you can preach against it.

And this is totally different from criminalizing, the Brazilian society still doesn't have this distinction very clear. So it's a huge workload, and I think we should have better ways of screening things, but it's not as bad as it sounds.

>> Diego Werneck Arguelhes: So, going to the second question, Justice Barroso, the US Supreme Court is a court of general jurisdiction.

In a way, it does not decide only constitutional questions and cases. The Brazilian Supreme Court, as you mentioned, has several different functions other than constitutional review. But it's not a generalist court, it's a court with several different specialized functions, so to speak, that are accumulated on the court beyond deciding appeals.

You already mentioned one of those extra competence, actually a central competence, which is constitutional review. And you mentioned those procedures that make it extremely likely, almost certain, that anything remotely of any import for Brazilian politics or society will be taken to the court. According to a recent study, between 2010 and 2019, the court agreed, at least partially, with the constitutional challenges brought in those abstract review procedures.

So, this means that in almost 40% of those challenges, the court was somehow suspending, annulling, voiding parts, or the entirety of a given statute, or an interpretation of a given statute. And in several such cases, the court invalidated not just statutes, but constitutional amendments-based on our constitution's explicit eternity clauses.

So this accessible, I mentioned this data to show how this open and powerful system of constitutional review has become pretty much a routine part of how laws are made in Brazil. But as you also mentioned, on top of those powers, the SDF is also a very powerful criminal court.

And as you mentioned, these are more than 500, around 600 public authorities that are under the court's original and final criminal jurisdiction. And I want to highlight that this not to say that the court reviews decisions made on criminal lawsuits against these defendants in Congress or in the cabinet.

The court acts as a trial court. It supervises investigative measures, authorizes provisional detention, hears witnesses, analyzes documents, decides factual questions. So, the court is acting those cases a super trial court. And these competences, they are also not marginal in the court's current standing. They have been central in the SDF's rise to power in the last decade, rise to the central stage of Brazilian politics.

And, Justice Barroso, you have been on the court since 2013, precisely in the era when discriminal competence has begun to become, if not more important than constitutional review. As important as constitutional review, but perhaps more controversial than constitutional review. So, this is a court that regularly decides not just on the constitutional fate of policies, but also on the individual fate of politicians.

Is this a good combination in your assessment of roles and competences? What are the dangers, if any, for a constitutional court, for a court entrusted with the task of constitutional adjudication, of having in its hands the individual fate of so many politicians, sometimes very powerful ones, sometimes at the same time.

>> Luís Roberto Barroso: I think, that's a bad institutional arrangement. I've always been against it, and I've been the rapporteur to reduce the criminal jurisdiction of the court. Because that's the jurisdiction when you are dealing with adjudicating criminal complaints against politicians you create a kind of tension. It's either with Congress or with society, there's no way out, It's a no-win situation.

And worse than that, besides having this original jurisdiction regarding all sorts of politicians, we also have a huge jurisdiction to hear habeas corpus petitions. The case of President Lula was heard in a habeas corpus petition. So, it's a role that I don't think the court should have, absolutely against it.

But it's very difficult to change this, because there's this view, this mentality that jurisdiction is power, and no one wants to give away power. I would gladly get rid of this power.

>> Diego Werneck Arguelhes: For a couple of years, during the Bolsonaro government, as I mentioned, you were also the chief judge of the country's highest electoral authority, the TSE superior electoral court.

The TSE is also, like the SDF, a powerful and multifaceted institution. But it has very different powers from what you would expect from a court. It acts in the electoral process as an administrator, rule maker, adjudicator, enacting, enforcing, and monitoring electoral regulations, as well as deciding cases concerning the application of these rules.

This is an established system in Brazil, goes back to the first half of the 20th century. Once again, it's not a recent invention, nor a judicial invention. The TSE is composed of seven judges, three of which are also supreme court judges who served there for a couple of years.

So, this is yet another layer of power of a Supreme Court judge in Brazil. But it comes with its own challenges. For example, during your tenure as the TSE's chief judge, President Bolsonaro falsely claimed several times not only that there were frauds in the previous election, but the TSE was somehow complicit in them.

And he spent half of his mandate campaigning against trusting the electoral system. And this meant in that context and in that institutional design, this meant attacking specific individuals who are in the institutional positions to defend the system and counter his attacks including you when you were part of the TSE.

In 2021, Bolsonaro threatened to petition to the Senate for the impeachment of Judge Justice Alexandria de Morais and yourself. He eventually submitted a petition only regarding Justice Alexandria de Morais. That petition was immediately dismissed by the Senate, and I'll talk more about the role of Congress in these clashes later.

But the combination of such roles, I guess this suggests that the combination of such roles in the hands of a few Supreme Court judges make them a double target for illiberal politicians like Bolsonaro. In the Supreme Court, those judges are engines of horizontal accountability. But in the TSE, they are key engines of vertical and electoral accountability.

They ensure electoral accountability at the TSE. And in both roles, they are in a collision course with a president who was bent on eliminating checks on his powers. So, this concentration of competences surely empowers the justice to check Bolsonaro's attacks on democracy. But my question is, perhaps there are dangers in having the same individual judges concentrated these many powers.

Powers that, in the case of the TSE, place them in the role of legislators and regulators for matters that affect the electoral process, like disinformation. In a highly polarized polity, could we say that more powerful individual judges risk becoming also more controversial and more contested, and perhaps more attractive targets for backsliding forces?

>> Luís Roberto Barroso: Well, when I was answering the previous question, I said I thought that was a bad institutional arrangement. As for what regards the superior electoral court, I think it's an excellent institutional arrangement, and I think we are a good example for the world in this matter. And this is a wonderful country with many wonderful things, except this electoral system.

And I think ours is much better, we have a judicial electoral system, we have a national court that oversees the elections, and we have state courts that oversee the elections. So, the controversies regarding the electoral process are decided by judges, not by people that have political affiliations. And I think that's made our system quite safe.

Besides that, we had, over the years, throughout, I would say, the entire Republican period, problems with electoral fraud and counting paper ballots. So, at some point in the 2000, I think, no, 1996, we created an electronic voting system that has worked just perfectly for Brazil and eliminated any kind of fraud.

Because it's a system in which the source code is open one year before the elections. All parties, all candidates can check it. We usually open it for the district attorney office, the federal police, and we have international observers, like the organization of the American States, or sometimes the Carter foundation.

And everyone can check the Cardio Fonte, the source code, as we call it, and then it's sealed. And everyone signs it, so there's no risk of fraud. It never goes online, so you cannot hack it. It's fed into the electronic voting machines with pen drives. So, we have 150 million voters in Brazil, and 2 hours after the elections, we announce the results.

That's how good the system works. And there's no way you can fraud the system. It's a total lie. It's a fraudulent argument that the former president used. So, this is a very safe system. What happened when I was the head of the electoral court before the 2020 elections, I didn't preside over the election, but I was the president until a few months before the elections, so I organized it.

And the president and his supporters presented a constitutional amendment to go back to paper vote with manual counting, as they said, which has always been the way to fraud in Brazil. And I fiercely opposed it. And I was invited. I know it would be uncommon here in the US.

It's not common in Brazil either. But I was invited to Congress to explain why we should keep the electronic voting system rather than going back to paper ballot. And then I went there, and I explained the reasons with very much detail, and I reminded them that they were elected In that system, and the risks that they would run if they would go back to the old system.

And they were convinced and they voted against the change. And the former president got very, very upset and insulted me in different ways, that it's unpublishable. And so that kind of exposure, it was personally terrible. But I think that in that constitutional amendment, we played a hand that could cost the Brazilian democracy, because we are talking about people that were capable of invading the Supreme Court, the presidential palace and Congress on January 8, after the elections.

So just imagine what those people could do in the voting stations where they thought they would lose the elections in a very aggressive environment that was created in Brazil. One of the bad things that happened in the past four years was the rise of a kind of political attitude that never happened in Brazil.

Very aggressive, very violent. So I was telling someone yesterday, I went to the World Cup final in Brazil in 2014. I had been at the court for one year. I went with my wife and my daughter and my son, four of us, just by ourselves, to Maracana, to the big stadium in Rio.

No secret service, no security whatsoever, because it was pretty safe to go. Then I went with a very well known judge, former justice, that unfortunately passed away. We went to the opening of the Olympics in Rio in 2016. No security whatsoever, just the two of us. Actually, my son came too, the three of us.

After 2018, when the former president was elected, this whole environment changed. And I cannot walk around without three bodyguards, because as a typical. It's very typical of authoritarian populism. You need to have enemies, you need to have foes. A typical populist attitude is dividing society between us, the decent people, and then the corrupt elites.

And the Supreme Court was the symbol that the president elected to symbolize the elites that he didn't like and that the people should not like. And so we went through very tough times. And besides that, the court brought to itself the role of resisting in Brazil, the dangers were enormous.

Like, they were very structured, internationally structured, with support of the US. They had sites, they had groups, they had professional structure of attacking the institutions, Congress, when they did not have majority, and the Supreme Court, the press, and they were trying to bring discredit to all democratic institutions, and calling people to invade the court and remove us from there by force.

It was unimaginable, unimaginable what was happening. So the court brought to itself the role of fighting against this. So we launched an investigation out of the Supreme Court. Very atypical, but it was the only way we could actually avoid the worst. And I think we did. However, the former president, he was defeated in 2022, but he had 49% of the vote.

So 49% of the Brazilian population thinks that the court is a problem, because that was what the president was campaigning for, saying, I can't govern because of the court. And if you would ask any of his supporters, but can you tell me one decision that actually brought this problem?

They can't tell because it hasn't been. We had a major role in the pandemic because the president was in total denial. So we became the enemy of 49%. Not enemy, but to have a negative perception from 49% of the population. And what's even worse, the other 51%, you make decisions, you give decisions that they don't like, so it's worse than 49%.

But recently, the data folia, which is a survey company, said that we only have 49% of support of the Brazilian society. And I thought, thank God, it could be much worse, because we decide all divisive issues of the Brazilian society. So we are always displeasing, or we are either displeasing the indigenous peoples or the farmers, we are displeasing the government or taxpayers.

We are always deciding things that are divisive. So I don't give too much attention to polls. And one thing that's very important to emphasize here, legitimacy is different than popularity. These are two totally different things. And I'll give you an example. Even being president, I kept with me a case of protection of indigenous communities in the northern part of Brazil.

And in this indigenous reserve, there were 1,000 indigenous, and there were 5,000 invaders, illegal miners, in the land. And I had them removed with the help of the federal police and the army. But if you have a poll there, I'm gonna lose five to one because they're a majority.

So you cannot think of a court like the Supreme Court in Brazil and the role it plays taking into account public opinion or public surveys, because it's part of our role to displease people quite often. And sometimes there are decisions that I don't like myself, as anyone that is in a college bodice knows that your opinion doesn't prevail always.

My opinion did not prevail in the criminal cases involving corruption, as you well know. I tried my best. It didn't prevail. Life goes on. So I'm not saying it's a perfect court, because there's no perfect court in the world. But when you disagree with a decision, you criticize it.

You don't want to destroy the institution, right?

>> Diego Werneck Arguelhes: And if, for the record, to clarify, I have no doubt that we have a great electoral system. I was aiming precisely at this problem that you arrived at the end. The fact that you and other specific judges were placed by the design of the system in this role in which you had to, at great personal cost, make.

>> Luís Roberto Barroso: But I think it had to be a Supreme Court justice to have the authority. We needed to preserve democracy against political forces.

>> Diego Werneck Arguelhes: And if you could elaborate a bit also concerning your tenure as Chief Judge of the TSC, because whatever rules we have regarding disinformation in Brazil for the last few years, since 2018, this has been a field where judicial protagonism was also very evident.

Congress has not enacted new rules on the subject. Most of the tools we have to deal with these during elections came from the TSC. If you could perhaps highlight the main aspects of the regulatory strategy of the TSC in this aspect.

>> Luís Roberto Barroso: Yeah, well, there was much before X changed hands and became a problem.

So what happened? It was the following, in 2016, I was Vice President of the Electoral Court. Justice Rosa Weber was the chief president, and she wanted to negotiate with digital platforms, some cautionary behaviors to avoid the dissemination of misinformation and disinformation during the elections. And the digital platforms, although they came to the table, they were very resistant to any sort of concession to removing content, very, very resistant.

In 2020, the environment had changed quite a bit, and I think they were conscious that they were losing a lot of prestige and running many risks from not removing totally absurd content. So for the elections of 2020, we did cut a deal with all major digital platforms, Google, Facebook, Instagram, YouTube, TikTok, if I'm not wrong, and we established a direct contact with them.

So we were monitoring the social media, and whenever something, not the dispute between the candidates, we were concerned about attacks to democracy and to the electoral system and to its integrity, and it worked pretty well. And we did remove a lot of improper content. And I think the improper use of the Internet and of social media was not decisive in the last elections, except for whatever is inevitable, you know, candidates accusing one another of this and that.

So I think we had a fairly good control of it. After the elections, we had more problems because the president did not concede, and he kept claiming that there was fraud and then his supporters. One thing that happened in the past government is that the military got extremely politicized since 1988, since the redemocratization of Brazil, the military had been kept outside politics, and there was no shortage of crisis.

During that time, we had two impeachments of elected presidents. We had many corruption scandals, and the armed forces didn't move an arm to do anything that was not respecting deconstitutional legality. That was something very unusual in the history of Brazil, in the republican history of Brazil. So they were having an exemplar behavior.

And after 2018, they went back to politics because the former president gave them many jobs in civil service, many jobs in civil service. I mean, we're talking about thousands, many thousands. So you double your salary, and you can bring your son, you can bring your wife. And besides, he brought militaries to civil positions.

So the health minister during the pandemic was a general that had never dealt with health issues ever, he was just a general. And the handling of the pandemic was a total disaster in Brazil. Brazil has a little over 2% of the population, of the world population, and we had over 10% of the deaths during the pandemic.

That's the size of the mismanagement of the pandemic. So the bringing of the military back to politics was a major risk. And after the elections, many of the president's supporters were camping in front of the military barracks, asking for a coup d'etat, asking for not letting the elected president take office.

And that became a national movement with thousands of people. So democracy in Brazil actually ran a major risk during that time. What was exactly your point here, just to make sure I get there?

>> Diego Werneck Arguelhes: No, you got there, and you got beyond there. I asked you about,

>> Diego Werneck Arguelhes: The main aspects of the TSC strategy regarding disinformation.

>> Luís Roberto Barroso: So,

>> Luís Roberto Barroso: After the elections, there was a massive campaign saying that the elections had been fraudulent. So many people were starting to be convinced. We had international observers from all over the world monitoring the elections, monitoring the voting machines. There was no trace of fraud, but the strategy for the coup was saying it was a fraudulent election.

You don't have to respect these people, they are not legitimate. And so the court had to fight back and remove a lot of content that was attacking the system as fraudulent when it was not because of the risk of a coup d'etat. So people that criticize the court, and we are a human institution that we are subject to critics, of course, as anyone else, but many people that criticize don't know exactly what we had to go through with campaigns.

We had in Brazil, for the first time since the dictatorship, a terrorist attack. They wanted to put a bomb at the Brasilia airport. Fortunately, it was discovered before that the station of the federal police in Brasilia was attacked, and they set fire at the station. As many people know, the former minister of defense, a man that was very important for Brazilian democracy, Fernando Azevedo, he was asked to take the Gripen planes and fly over the Supreme Court, to break the glasses and intimidate the court.

So we went through things that. That were unimaginable in a democracy. So I don't know how close we were to a coup, but that many people were engaged in having a coup, I have no doubt. This information was part of the strategy for the coup, that's why we were fighting back.

>> Diego Werneck Arguelhes: And in that delicate, explosive context, as you already mentioned, in 2019, the court established the power to initiate investigative procedures, proceedings on online attacks and threats against the judges or their families, what became popularly known as the fake news investigation. Over time, even though Justice Alexandre de Moraes was appointed as the presiding judge of those investigations, over time, those seeds in 2019 created by the original proceeding have greatly expanded since then.

They now cover a wide array of attacks and disinformation on democracy and political institutions involving the Bolsonaro presidency, his allies, and beyond. As you mentioned, as well, Elon Musk, the owner of the social media platform acts, was a recent addition to the list of people investigated in those proceedings for their potential connections with organized attacks against the court and brazilian democracy more generally.

More recently, the platform was suspended from operating Brazil by an injunction issued by Justice Moraes, but then unanimously confirmed by a panel of the court. These proceedings, they have many controversial aspects in the last few years, and I will not get into the legal details of why this has been the case.

These debates have been going on. But since the investigations have been ongoing for more than five years now, I would like to ask a broader question which connects to something that you already mentioned. Should we understand this investigative role and these investigative powers as something that was necessary for exceptional times, and those were exceptional times to cope with a specific danger for our democracy?

Are those powers a permanent change in the court's already vast arsenal of competencies? And in this case, the investigative court is here to stay?

>> Luís Roberto Barroso: I think the exceptional times are over. I do think. I think the country is back to normality in the sense that there are people that like the government, there are people that don't like the government, their freedom of expression.

The president has been criticized over many issues, as is normal in any democracy. I think we are back to normality. I can now decide against the government as I have, and I haven't been insulted. That's a good standard, a good change by itself. So I think we are back to normality in the sense that I don't see any institutional risk or threat in the near future.

However, we still have to decide the cases. What is making things difficult for totally pacifying the country and making bridges and find a common ground agenda is that we had in the 8th of January invasion of the of Congress, of the court and of the presidential palace. Just to give you a flavor of how much hatred there was against the court, they invaded Congress, they invaded the presidential palace.

But the Supreme Court building was the one that was depredated the most. They were really upset. One awkward thing that happened to that one of the policemen told me, was that people would break the walls, throw the Christ on the floor, set fire on the tables, and then they would kneel and pray.

It's unbelievable what happened in Brazil. It's this improper mixture of politics and religion that doesn't do good, in my view. So I think exceptional times are over. Then we have around 1500 indictments of people that invaded the buildings, 220 of these were actually filmed in breaking things and setting fire and doing attacking the guards.

That's a more serious felony. There are 1250 indictments, they're not so serious. It was offered to these people, a plea bargain, a rewarded collaboration, as we. No, it's not. No, it was not. No, that wasn't the case. It was basically a plea bargain. In Portuguese, je nombre six sempenau, meaning, if you agree with my conditions, I won't file a criminal complaint against you.

The conditions were, Paulo Gonet is not here. He's the one that offered it. It's the attorney general, the procreator general. Just because I was going to make a joke. He offered the plea bargain to these 1250 people. The plea bargain was, first, a fine of $1,000 for people that could pay.

Second, two years without social media. Third, they had to take a course on democracy with the procurator general. That could be too cruel. But no, that was a joke.

>> Diego Werneck Arguelhes: Was it?

>> Luís Roberto Barroso: Within the procreator general office, they would give a course on the markets. Well, at first, none of them almost accepted the offer.

Now around 500 have accepted the offer. 700 prefer the risk of going to prison than agreeing with such an offer. The information that has been disseminated, that people that were arrested were just stand byers or humble workers that were manipulated. It doesn't seem to be true, because they would get their passports back.

They would lose their. I don't know how to say that, tonozeleira electronica. If someone want to help me, it's some kind of monitoring device. Ankle bracelet, whatever this. What I was. I was gonna say, I think the exceptional times are over, but we are still deciding these criminal cases.

So this kinda brings tension to the political environment. And besides that, there's an ongoing investigation for the coup d'etat. And that involves people that were in high positions in the previous government. So the exception of times are over, but the trials haven't occurred yet. And that keeps the tension in the air.

That's a problem. I had the firm purpose of pacifying and unifying the country. But before you can finish up these judgments, it's very difficult. Because, of course, if you fear to be arrested, you're not in peace. You don't wanna pacify anything. You wanna resist. So I'm investing my time as chief justice in trying to make permanent imprints in the judiciary, changing many things.

I created a national exam for judges. To make sure that in Brazil, judges, you become a judge through a public competitive examination. It's a wonderful way, and it makes a judiciary very independent, as the Brazilian judiciary is very independent. However, there were rumors here and there that something wrong happened in some of these examinations.

So I created a national examination. Each court, state courts, labor courts, they can still select their judges through public examinations, but you have to pass mine first. Like a federal that's organized by the National Council of Justice. So there's a minimum standard that you can nationalize. I did the same for notaries.

I created a scholarship to prepare Afro Brazilians to make them more competitive in these examinations. Because the Brazilian judiciary is 90%, 95% white in a country that's very miscegenated. The judiciary doesn't correspond to the demography of the country. So we need to have affirmative action. We approved a resolution establishing that for higher courts, if you promote a man, the next spot needs to be filled by a woman.

We call it parity, because in the trial level in which you enter through comparative examinations, we have 40% of women, and in the higher courts, we have less than 20%. Because then you depend on politics to move up in your career. So I'm trying to do things that will make a better judicial system for the future, while I wait these judgments to go on, and then actually pacify the country and having people sit.

The people are so accustomed to conflicts in Brazil. That there was a major dispute before the court, involving the budget, was a dispute between the executive and the legislature. And the court issued a decision that displeased everyone. And so we held a meeting at the court with the 11 judges, with the head of the Senate, with the head of the House of Representatives and with the chief of staff of the president, and we struck a deal that was much better than what we had before.

And many people reacted like, see, this is not the role of the court to solve conflict between powers, between branches of government. Well, that's exactly the role of the court.

>> Diego Werneck Arguelhes: So for our last question, I'll point to the future a bit. The last few years have shown that the court is very powerful, but they have also highlighted how much the court's powers they require political support to be fully deployed.

And I think this was evident in the Covid-19 pandemic, for example, when public opinion and several key states of the Brazilian federation were supporting the court as it constrained the president's militant denialism of the pandemic. Congress itself was at that point a partial ally. It did not approve any measures proposed by the president that would somehow curb the SF.

Like the impeachment petition that I mentioned was summarily dismissed by the Senate without any further consideration. However, the relationship with Congress seems to have become more difficult in the last couple of years. My impression, perhaps more than in the Bolsonaro erade. One reason is obvious. For the last decade or so, this court has been largely progressive on several issues on which Congress is largely conservative.

You already referred to that, as well. And there are many issues on the court's agenda as we speak, like legalization of abortion, that are guaranteed to spark disagreements with what is now the most conservative Congress Brazil has had since democratization. And in your scholarly writings, you have defended that sometimes the court should actively push history forward, promoting progressive social reform and progressive values.

Even if they are not aligned with popular sentiment or the congressional agenda, congressional priorities. You have called this the enlightened role of the court. But as you also mentioned couple questions ago, you have recently declared that in your assessment, the public debate on abortion in Brazil is perhaps not fully mature.

And you said this in the context that you were describing your institutional role as the chief justice and how you would not use this role to bring this case for deliberation. Which is one of the powers of the chief justice in Brazil, is to select which of the cases cleared for deliberation by the reporters will be sentence for the full plenary court for deliberation.

So while let's say that this is in some way an expression of the court picking its battles with Congress, you might not agree with this description, but let's assume this is there somehow. How do you this might sound like bad news for citizens, especially vulnerable minorities expecting progressive rulings by the court.

So how would you characterize in the next few years how challenging it will be, this balancing act between moving forward with a fundamental rights agenda and keeping an eye on relations with Congress, even if not necessarily with public opinion?

>> Luís Roberto Barroso: This is a more complex question. First of all, the Brazilian constitution is a very enlightened constitution.

It's a very progressive constitution. It deals with, as I said earlier, with universalizing education, which Brazil only did 100 years after the United States. And that explains a lot of things. It deals with the fantastic system of public health. Okay, it's underfunded, it's difficult to manage, but it's formidable.

The system. It's a universal system of access to healthcare. There's no country in the world That offers this it's exception. This is very progressive. So education is very progressive. The public health care system is very progressive. The constitution in more than one part mentions equality. And the court understood, and I think correctly, although I was the lawyer at the time, the court validated same sex marriage interpreting the constitution.

The court did not invent anything. The court protects indigenous communities because that's what the constitution tells the court to do. And of course, you have opposition in Congress regarding many of these issues and many of these decisions, but many people don't like the Constitution itself. But it's hard to amend the constitution.

So you criticize the court and you say that the court is activist. To give you an example, there was a parliamentary investigation committee regarding the previous government and their policies during the pandemic. The court ordered the investigation committee for one reason. The constitution says if one-third of the senators ask for the launching of a investigatory committee and indicate a fact to be investigated, it's a right of this minority that the committee be installed, be launched, and the Senate did not launch.

And the court decided, ordered the Senate to launch the investigation. This is written in the constitution. But people that don't like the decision says that the court is activist, that it's interfering with politics. So part of the criticism is a criticism of dislike in the constitution, and it's part of the game.

And we should remember that the former president had 49% of the votes. He didn't win, but his supporters were elected to the Senate. So there is an important critic. There is important criticism of the court in Congress, which is part of the game. It's part of democracy. We need to deal with it.

I don't feel, of course, when they file impeachment requests against, I have 12, but Alexander has many more than I do. So that's a competition I didn't wanna win. But the impeachment requests are maybe a little different ballgame. But the criticism and even proposals to change the rule of the court, I think it's part of democracy.

And if you're in a democracy, you need to be prepared to discuss, to defend your point of view and to lose once in a while. So the criticism itself, the opposition and constitutional amendments, I think they're part of the game. Impeachment requests, I appreciate them less than the legitimate opposition that I think is part of the game.

One thing we must understand, you cannot have a court with the role that we play, with the issues that we decide, with the prominence that we have without having discontents. Of course, we do. It's part of the game. And especially because in a society that became quite conservative over time and dealing with a constitution that's quite progressive and with many judges, that if you would have this dual division of the world that many times don't cover the spectrum of views.

But you might have a more progressive court than you might. It might be true what you said, that maybe the court was more progressive than Congress that became quite conservative. But I don't think that's bad. You need to be able to deal with different views of the world and then democracy has room for liberals, for progressive liberals in the european sense, for progressive or for conservatives.

The problem we had that I thought, I think was more delicate was the loss of civility. It's not. Being conservative or being progressive or being liberal is the loss of civility. The rise of a more aggressive way of doing politics and the need to disqualify morally. Who thinks different than you think?

This idea that if you have a different view from me, you are probably serving a dishonest cause. That's intolerance, that's fascism. It could be left wing or right wing. The problem is the intolerance. So we need to recover the capacity of having people that think differently sitting on the same table and putting their arguments, because that's what democracy is.

This is the kantian idea of democracy. Everything that's right should prevail at a certain point in the public sphere. And I do believe in that. So even when the president insulted me with different words, a strange kind of French, I never answered in a rude way because if I did, I would have lost because I would let him change my nature, which is not swearing at people.

So we need to recover this civility, the capacity of dealing. And in America, the same thing is happening. People just disqualify your opponent by saying, I'm gonna put him in prison or he's serving some horrible interest, non patriotic. I think the world needs to overcome that and go back to normal politics with liberal and conservatives and people that have different views and alternation in power.

It's a blessing. So this is something we need to recover. And of course, I hope that after these judgments I was mentioning that the court becomes less prominent than it is in Brazil because the judiciary. It's funny to say that with so many judges in here, including myself.

But the judiciary is a pathological instance of life because you only go to the judiciary when there's a fight, and fighting is not the normal way of living life. The normal way of living life is you find solutions negotiating and you settle. You don't fight. So we kind of developed a society that is litigating more than it should.

Brazil has the world record in lawsuits. We have 83,800,000 cases pending. We decide the judicial system, 35 million cases per year and 35 million new cases are filed every year. So the level of litigation in Brazil and the level of lack of civility, it upsets me a lot.

And I'm trying to overcome this as, doing my best. I think this is what I could do. You have any other question?

>> Diego Werneck Arguelhes: No. And I've been told that we are past the time already. So if you don't have any other answers, I don't have any other questions, at least for now.

>> Luís Roberto Barroso: Well, I have many questions. Well, thank you all for coming and it was a pleasure to be here.

>> Diego Werneck Arguelhes: Thank you. Thank you.