Taming the Brazilian Supreme Court

The recent Proposal for Constitutional Amendment No. 28/2024 (PEC 28/2024), currently under consideration in the Chamber of Deputies, aims to modify constitutional review by allowing Congress to suspend certain decisions of the Supreme Federal Court in specific cases. In light of the widespread criticism directed at the reform, this article seeks to examine the validity of these concerns. While we do not take a definitive stance on the advisability of the amendment, we identify and discuss several exaggerated and premature criticisms present in the public debate. Additionally, we explore how models of weak judicial review, successfully integrated by numerous established democracies, may foster constitutional dialogues and collaboration, potentially reducing counter-majoritarian frictions and enhancing democratic principles. Our objective is to clarify misconceptions and qualify the discussion surrounding PEC 28/2024, rather than to advocate for or against the proposed changes.

In recent years, a widespread perception of the Brazilian Federal Supreme Court’s dysfunctionality has grown across the country, prompting the proposal. In a survey conducted in September 2021, 63% of respondents said that the Judiciary represented a risk to democracy. Another poll from 2024 shows that 47% believe that Brazil is “under a judicial dictatorship”. Just two out of ten said that the country lives in a period of normality regarding the Judiciary. Opinion research also reveals a consistent trend of decreasing levels of public approval and trust in the Brazilian Federal Supreme Court (around 17% in 2023 and 14% in 2024). Finally, in the last few years, there have been repeated protests against the Brazilian Federal Supreme Court, alleging that it has violated freedom of speech, practiced lawfare, and jeopardized democracy.

In the face of these facts, Congress began to consider several proposals that congressmen described as efforts to improve the Court’s work. One of the proposals seeks to amend the Constitution to establish the following: “In the decisions of the Federal Supreme Court, in the exercise of constitutional jurisdiction in either concrete or abstract cases, if the National Congress considers that the decision exceeds the proper exercise of the judicial function and creates new legal provisions of a general and abstract nature, it may suspend its effects by a two-thirds vote of the members of each of its Legislative Houses, for a period of two years, extendable only once for an equal period.”

Another provision establishes what the literature nominated as “double-override” provision. Accordingly, if Congress exercises the override prerogative, the Federal Supreme Court can uphold its decision, but only through a highly qualified majority of four-fifths of its members.

The proposal raised criticism, as significant portions of the public are accustomed to the model of strong judicial review developed over the last decades. Critics argued that the amendment could erode the rule of law and threaten judicial independence. Furthermore, opponents recalled a bad experience with a “notwithstanding clause” in the Brazilian Constitution of 1937 during the Vargas Dictatorship.

Nonetheless, an analysis from a comparative legal perspective and more precise historical studies do not support these concerns. Strong democracies with high levels of rule of law and judicial independence have adopted models of weak judicial review. In addition, the experience during the Vargas regime was significantly different, including the fact that Congress was closed, and the overridden powers were exercised monocratically by the dictatorial head of the Executive branch.

Indeed, the model of constitutional review proposed in the Amendment is compatible with strong adherence to the rule of law and judicial independence in constitutional democracies. To understand this, it’s important to study the conception of weak judicial review that underlies the proposal, its potential to beneficially impact on democratic structures, and the data from the countries that have adopted it.

The weak judicial review model is an alternative answer to the question of how legal systems should guarantee the supremacy of the constitution. Since constitutions have come to be understood as legal documents – and not just political ones – able to be enforced through juridical remedies, one must answer the question how to implement this idea institutionally. Who should interpret and enforce a constitution, and how should this responsibility be exercised, particularly in systems marked by principles and open clauses?

Initially, the idea of the judiciary as the guardian of constitutional authority emerged as the first intuitive answer. In countries where this approach has been hegemonic, such as Brazil, people tend to see weak models of judicial review with skepticism. Nonetheless, the “judiciary as guardian” approach has led to problematic phenomena, such as the “judicialization” of politics and, in some cases, the perception of a shift from democracy toward juristocracy. With increased judicial power, many countries started dealing with the problem of judicial activism. One major problem is the “counter-majoritarian difficulty”, where courts may obstruct policies widely supported by the populace, potentially stalling virtuous majority agendas. Moreover, there is a risk of courts being politically captured, which could undermine democratic balance by favoring dominant political interests, stifling opposition, and advancing partisan agendas.

In response to these tensions, particularly since the late 20th century, legal systems have developed new ways to secure constitutional supremacy without relying solely on judicial supremacy. Common law countries, led by the United Kingdom, spearheaded this movement, forming what Stephen Gardbaum called the “New Commonwealth Model of Constitutionalism”. While embracing judicial review, this model upholds parliamentary sovereignty as the final arbiter. Courts in these systems can review laws for constitutional compliance, but ultimate authority remains with the legislature. Mark Tushnet further clarified this distinction by categorizing judicial review as either “weak” or “strong”. In “weak” judicial review systems, legislatures retain the ability to override judicial interpretations of constitutional questions, while in “strong” systems, judicial rulings are not subject to immediate political review.

As to the weak constitutional review’s implications for democracy, scholars have praised its potentially virtuous impacts on democratic dynamics. This model might foster constitutional dialogues as it enhances collaboration and reduces counter-majoritarian frictions by allowing courts to engage constructively with legislators. Therefore, it offers a pathway for harmonizing judicial review with democratic principles, supporting a dynamic, balanced approach to constitutional governance. Contrary to a genuine clash between the judiciary and the legislature, the notion of collaboration ultimately serves as the driving force in this context. Indeed, following the perspective presented by Kavanagh, instead of a dynamic of disagreement and judicial displacement, what is expected to emerge in a functioning liberal democracy is a constitutional relationship marked by respect and restraint, comity, and collaboration.

Finally, some of the countries that have established weak forms of judicial review include Canada, the United Kingdom, and New Zealand. They all have strong levels of democratic consolidation and adherence to the rule of law. Indeed, the Democracy Index of 2023 classifies all of them as full democracies. In the Rule of Law Index, the three countries hold strong positions among the 15 best grades. Regarding the capacity of the judiciary to limit the government and to administer the law impartially and without undue pressure from the government, all the countries also reach high grades and positions in the ranks.

As for the Brazilian case, the comparisons with the Vargas Dictatorship are groundless. To begin with, the current constitutional circumstances differ entirely from that of the 1937 Constitution. During Vargas’s dictatorship, Congress was shut down, and override powers were concentrated in the hands of the head of the Executive, creating an authoritarian scenario. In contrast, PEC 28/2024 brings to Congress a mechanism to control and safeguard inter-institutional balance within a framework long studied and debated in political science and state theory. Particularly in the light of the inherent democratic tensions that the concept of judicial review introduces from its very conception and throughout its ongoing development. In fact, as scholars have recognized, judicial review can significantly protect and promote democratic values such as deliberation and the protection of minority rights, “but it does so in ways that are inevitably in tension with – rather than immune from – democratic objections of the kind raised by political constitutionalists”.

Finally, it is important to note that the current Amendment Proposal requires a qualified two-thirds majority in both legislative houses to suspend a judicial decision, limiting this suspension to a maximum of four years. These features ensure a deliberative and representative process of collaboration, vastly different from the dictatorial context of 1937. In addition, the current proposal has a double-override clause, which is a significant shield against eventual political abuses.

In conclusion, regardless of its approval or political feasibility, PEC 28/2024 opens the door to a broader discussion about the rebalancing of powers within Brazil’s constitutional framework while drawing on positive experiences from established democracies that have successfully integrated models of weak judicial review. Furthermore, PEC 28/2024 allows for a critical assessment of the current state of constitutional review conducted by the Brazilian Federal Supreme Court. Above all, the Proposed Amendment is situated within a wider debate aimed at mitigating the risks of judicial overreach while preserving essential democratic principles, including the rule of law and judicial independence.