Until 2007, José Antonio Dias Toffoli led an unexceptional law career as the legal representative for the Workers’ Party and, on different occasions, a mid-tier legal advisor for its politicians. Eleven years ago, however, he rose to prominence, when then-president Luiz Inácio Lula da Silva named him Solicitor General. Only two years later, Mr. Dias Toffoli was appointed to the Supreme Court, at just 41 years old. His tenure on the bench can last until 2042, when he’ll reach the age limit for justices at 75 years old.
Now, at 50 years of age, he has become the court’s youngest Chief Justice in history.
In Brazil, unlike the U.S., the Chief Justice position is rotative. The leader of the court serves a two-year term and steps down, being replaced by the Associate Justice with the most time in the court without having already served as the Chief Justice. So, Justice Dias Toffoli will lead the Judiciary branch of government until 2020.
Who is the new Chief Justice?
From the get-go, Justice Dias Toffoli’s name was met with intense criticism – not only for his age or his role as the lawyer of a political party and the personal lawyer of the president who appointed him – but also due to a perceived lack of qualifications for the job. The Constitution establishes vague criteria for the appointment of Supreme Court Justices, requiring they have an “irreproachable reputation” and “notorious legal expertise.” On both counts, Justice Dias Toffoli was questioned by opponents of Lula’s administration.
For one, his law firm had been previously convicted of scheming with the state government of Amapá, in northern Brazil, to receive a fixed BRL 35,000 fee from the local government to represent it in higher courts. The arrangement was considered unlawful, and the firm had to return over BRL 420,000 to the state – the verdict would later be overturned in higher courts.
But then, there is also the question of “notorious legal expertise.” In the 1990s, the now Chief Justice failed two exams to join the bench in state courts of São Paulo. In one of these exams, he even failed to qualify from the first round.
In his nine years in the country’s highest court, Justice Dias Toffoli has built a reputation as a moderate who is against harsher penalties for defendants, notably white collar ones. Alongside Justice Gilmar Mendes (Brazil’s answer to the late U.S. Supreme Court Justice Antonin Scalia), the new Chief Justice has been responsible for overturning several convictions and releasing convicted felons from prison – against precedents set by the court.
In an effort to speed up the overwhelming amount of cases in the Supreme Court, the 11 justices are divided into two panels of five justices (the Chief Justice doesn’t take part in these panels) that analyze simpler cases – whether due to the lack of legal relevance or to the existence of precedent on the matter. The panel with Justices Mendes and Dias Toffoli (with Justice Ricardo Lewandowski ensuring the majority) is known among lawyers as the “Garden of Eden,” due to its propensity for ruling in favor of defendants.
Some firms tried to speed up their cases to make sure their clients were tried while Justice Dias Toffoli was still on the panel. He will now be replaced by Justice Cármen Lúcia, who steps down as Chief Justice and returns to her post as Associate Justice.
What to expect from the Supreme Court under Dias Toffoli
As his inauguration day edged closer, rumors surrounding the new Chief Justice started to pop up in Brasilia. At first, analysts questioned whether he would schedule the trial on the decision to allow convicted felons to be arrested after a conviction by a court of appeals, even if all appeals haven’t been exhausted.
The court is set on a majority against these arrests – and a new trial on the matter would directly benefit former president Lula, who has been in jail since April 7, and has recently been officially excluded from the presidential race.
A second rumor stated that Justice Dias Toffoli could name Lula’s former press advisor as his communications director. Both events are independent, but signal that observers expect the Supreme Court leader to favor the Workers’ Party.
However, the new Chief Justice has informed his colleagues that he wants no controversial trials this year, as the country is already facing a very divisive election. The trial on arrests after a conviction by a court of appeals is expected to be scheduled for March – so he cannot be accused of trying to put Lula back in the electoral game.
Also, what was originally seen as Justice Dias Toffoli main liability – his political connections – have now become an asset, according to observers. Under Justice Cármen Lúcia, the Supreme Court has had a conflictual relationship with the other branches of government.
The low point of that relationship happened in December 2016, when the Supreme Court suspended then Senate President Renan Calheiros, after he became a defendant in a criminal case. The Senate defied the ruling and kept Mr. Calheiros in office. What followed was even more bizarre than the dismissal of the Supreme Court’s decision. The country’s highest court caved, and made a ridiculously unorthodox decision: Renan Calheiros would stay in office, but would be passed over in the presidential line of succession.
Justice Dias Toffoli wants to reestablish the bridges between the branches of power, and has said he will meet with leaders of the Congress and the president on a regular basis. While that could seem like a healthy way to avoid conflict, let’s not forget that two-thirds of congressmen are facing criminal accusations. The new Chief Justice’s demeanor as a conciliator could have a positive effect on political operators, but could further erode the people’s trust in the court – already seen as being too close to the politicians it should be keeping in check.