Why are Brazilian courts so unpredictable?

. Oct 29, 2019
Brazil's Supreme Court: a peculiar beast

“I’m embarrassed for having tired you all out so much,” joked Supreme Court Justice Rosa Weber, 81 minutes into declaring her vote on a crucial case to decide whether defendants may be sent to jail before exhausting all appeals routes.

Ten minutes later, she finally reached the end of her 60-page, 19,000-word statement.

Her monologue opened with a quote from Voltaire, mixed Portuguese, English, French, Italian and Latin, and ended with a poem from Constantine Cavafy.</p> <p>Dias Toffoli, the Chief Justice of the Supreme Court, before calling a much-needed 15-minute bathroom break for his colleagues, gushed: &#8220;That was beautiful&#8230;&#8221;</p> <p>The trial in question—despite only requiring the court&#8217;s 11 justices to declare whether they agree or disagree with <a href="">imprisonment after a single failed appeal</a>—has already taken up three full-day sessions in the Supreme Court and will require one or two more.</p> <p>To say the trial has only taken three days, however, would be incorrect. The cases in question have actually been ready for a decision since September 2018, with the trial date initially slated for April 10.</p> <p>The issue is emblematic of the nightmarish inner-workings of Brazil&#8217;s highest court, where cases can take years to conclude and justices are criticized for being more concerned about eloquation than efficiency.</p> <h2>Justices&#8217; powers</h2> <p>A common negative critique leveled at Brazil&#8217;s Supreme Court is that its members have &#8220;too much power.&#8221; However, Ana Laura Pereira Barbosa, a lawyer and researcher at thinktank Fundação Getúlio Vargas, believes that this aspersion misses the mark. &#8220;I wouldn&#8217;t say they have more power [than Supreme Court justices in other countries], but that the power is allocated in a different way,&#8221; she tells <strong>The Brazilian Report</strong>.</p> <p>Ms. Barbosa explains that despite being a collegiate body in name, the Supreme Court&#8217;s decision-making process is overly fragmented. Rapporteurs choose when to release cases for trial, the Chief Justice decides when the trial will be held, and even once all the justices are finally gathered in the court to make a decision, any member can arbitrarily take the case under advisement, delaying the trial even further.</p> <p>Before all this, however, there is the matter of preliminary injunctions, a recourse used with abandon by Brazil&#8217;s Supreme Court. Collegiate rules state that justices may individually issue provisional rulings in urgent cases, which must then be promptly confirmed by the full court. &#8220;In practice, these injunctions become provisional decisions on merit, as the court takes such a long time to confirm them,&#8221; said Ms. Barbosa.&nbsp;</p> <h2>All cases welcome</h2> <p>Beyond arbitrary delay tactics used by the members of Brazil&#8217;s highest tribunal, the morosity of the Supreme Court can also be explained by its huge case backlog. The court&#8217;s jurisdiction is very broad; despite nominally being a constitutional tribunal, it serves as a <em>de facto</em> last instance of appeal for any cases. While the U.S. Supreme Court carries out triage of the cases it will hear, its Brazilian counterpart has no such mechanism.</p> <p>In practice, this means that the court is not only burdened with deciding huge, era-defining cases such as the one on imprisonment after a failed appeal, but it also needs to tackle banal matters that have no place in a Supreme Court.</p> <p>Former Justice Carlos Velloso looks back to 2005 for the <a href="">oddest case</a> he had to decide on as a member of Brazil&#8217;s highest tribunal. In Habeas Corpus No. 85066, Mr. Velloso had to oversee the appeal of a public servant who was accused of shooting a parrot and poisoning a pregnant dog. “The parrot-killer case was the weirdest I’ve had to rule, but it wasn’t the only one,” said Mr. Velloso. “It’s a shame to see the country’s most brilliant jurists wasting their time with domestic disputes when they should be writing our legal history.&#8221;</p> <p>So far this year, almost 75,000 cases have been filed to the Supreme Court. In order to clear all of them in the space of 12 months, each member of the court would have to decide on over 40 cases each working day.</p> <h2>Did video kill the high court star?</h2> <p>Unlike the U.S. or the United Kingdom, Supreme Court sittings in Brazil are broadcast live on television, on the rather presumptuously named station &#8220;<a href="">Justice TV</a>.&#8221; Originally intended to provide some form of oversight and accountability to Supreme Court deliberations, there are some concerns that the format may have provoked some bad habits in the 11 justices.</p> <p>Empirical research has shown that since the introduction of Justice TV, the votes rendered by Supreme Court justices have gotten longer and longer—with Rosa Weber&#8217;s 90-minute spiel on Thursday becoming the norm, not an exception.</p> <p>However, the same research—led by Fundação Getúlio Vargas law professor Ivar Hartmann—found that the justices engaged in longer and more in-depth debates on their cases during deliberation sessions, perhaps counterbalancing the increase in loquacity of the court&#8217;s 11 justices.

Euan Marshall

Originally from Scotland, Euan Marshall is a journalist who ditched his kilt and bagpipes for a caipirinha and a football in 2011, when he traded Glasgow for São Paulo. Specializing in Brazilian soccer, politics and the connection between the two, he authored a comprehensive history of Brazilian soccer entitled “A to Zico: An Alphabet of Brazilian Football.”

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