The challenges for Brazil’s new Chief Justice

what is arguably the biggest crisis since its return to democracy in 1985 — ruled by a president that has on multiple occasions <a href="https://brazilian.report/power/2020/08/17/president-bolsonaro-threatened-military-intervention-several-times/">mulled over sending troops to shut down the court</a>, as our Brasília correspondent Débora Álvares has revealed. Moreover, the country faces what looks set to be the <a href="https://brazilian.report/society/2019/05/03/brazilian-economy-crises-history/">worst economic crisis</a> in history and is still struggling to control the <a href="https://brazilian.report/coronavirus-brazil-live-blog/">coronavirus</a> spread.</p> <p>If that wasn&#8217;t enough, Chief Justice Fux takes office in a moment when the reputation of the court has been severely damaged. Those who believe the court performs a bad or terrible job (29 percent) outnumber those who approve of its work (27 percent).&nbsp;</p> <p>The Supreme Court’s image crisis is fueled by the justices&#8217; perceived adoption of an increasingly <a href="https://politica.estadao.com.br/noticias/geral,quem-e-o-ministro-luiz-fux-novo-presidente-do-stf,70003429656">political role</a>, as well as disregard for its own precedent —&nbsp;deepening the sense of political chaos and uncertainty in the country.</p> <h2>What the Fux Supreme Court will look like</h2> <p>Chief Justice Fux&#8217;s history might hint at what kind of court he will seek to lead for the next two years (unlike the U.S., the Chief Justice position in Brazil is rotative, with the leader of the court being changed every two years).</p> <p>A judge since the early 1980s, Luiz Fux always tried to stay in the good graces of different — and seemingly antagonistic —&nbsp;political groups. He rose to the Supreme Court in 2011, thanks to an intense behind-the-scenes lobbying campaign in which he earned the support of an impressively diverse set of actors from then-Rio de Janeiro Governor Sérgio Cabral (a now-disgraced figure with dozens of corruption convictions on his résumé), to João Pedro Stedile, the leader of the Landless Workers&#8217; Movement (MST).</p> <p>In 2012, Mr. Fux was put on the spot by a report claiming that he hinted to government officials he would reward a Supreme Court nomination with verdicts in favor of the administration. The Workers’ Party government was facing what was at the time the biggest corruption trial in Brazilian political history — when 40 politicians and bankers were prosecuted for operating a vote-for-cash scheme in Congress known as the “Mensalão Scandal.”&nbsp;</p> <p>Many of his votes, however, were against the party he had allegedly promised to protect.</p> <p>In recent years, he became one of the staunchest allies of Operation Car Wash in the Supreme Court —&nbsp;to the point where prosecutors declared in leaked message exchanges, revealed by The Intercept, that “in Fux we trust.”</p> <h2>Pandemic curbed the powers of the Chief Justice</h2> <p>Chief Justice Fux, however, takes the reigns of the court with many of his prerogatives as Chief Justice — the power to set the court&#8217;s agenda —&nbsp;diminished by the pandemic. The coronavirus has forced the Supreme Court to suspend all in-person activities, as most of its members fit the criteria of at-risk populations. Instead of regular trials, justices have worked through the so-called “<a href="https://brazilian.report/power/2019/03/14/brazil-supreme-court-digital-justice/">digital court</a>.”</p> <p>The mechanism was put in place in 2007 as a plan to reduce caseloads. It works as a simple electronic voting system, where each member of the court can log on and issue their decision without the need for a physical session of one of the 4-justice panels or the full bench.</p> <p>In regular times, only the Chief Justice had the powers to decide when the major cases would go to trial. But with the pandemic, the &#8220;digital court&#8221; has been expanded, and each justice can bring to the full bench cases in which they act as rapporteurs. Chief Justice Fux will only be able to control the agenda of the most important cases —&nbsp;reserved for in-person trials.</p> <h2>The Toffoli legacy</h2> <p>As our Brasília correspondent Débora Álvares reported in our September 8 Weekly Report, the outgoing Chief Justice, Dias Toffoli, leaves a legacy widely considered as “<a href="https://brazilian.report/newsletters/brazil-weekly/2020/09/08/brazilian-supreme-court-new-chief-justice-luiz-fux/">extremely negative</a>” even by his peers.</p> <p>One judge told <strong>The Brazilian Report</strong> that Justice Toffoli put the Supreme Court “in an unacceptable position of subservience” to the government. Mr. Toffoli went as far as describing the 1964 military coup as a “movement” just so he wouldn’t ruffle any feathers within the strongly pro-dictatorship administration. Given the fact that the Supreme Court is supposed to protect <a href="https://brazilian.report/podcast/2018/10/05/podcast-brazilian-constitution/">Brazil’s democratic post-dictatorship constitution</a>, such obsequience committed by the Chief Justice is particularly disturbing.</p> <p>Newly-inaugurated Chief Justice Fux, however, promises to bring a more respectable approach to the office. He aims to keep relations with the other branches of government &#8220;as formal as possible,&#8221; according to one associate justice. However, while his antics differ a lot from his predecessor&#8217;s, Chief Justice Fux believes the Supreme Court should work to guarantee institutional harmony.</p> <p>If Chief Justice Fux will achieve such harmony to the detriment of the court&#8217;s reputation remains to be seen. But during Justice Toffoli’s farewell ceremony of , President Jair Bolsonaro (who showed up unannounced) committed an <a href="https://blogs.oglobo.globo.com/bernardo-mello-franco/post/fux-tera-que-escolher.html">indiscretion</a>: &#8220;You told me: &#8216;Whatever I need from the Supreme Court,&#8217; just as I had from Justice Toffoli, I shall have from you.&#8221;</p> <p>Justice Toffoli also leaves behind a highly-controversial investigation into the spread of disinformation for political purposes. It was launched in March 2019 as a way to shield the court from abuse on Twitter, but was quickly used as justification to censor a story by online magazine Crusoé, linking Justice Toffoli to construction firm Odebrecht.</p> <p>“The very nature of his inquiry goes <a href="https://brazilian.report/power/2020/05/28/bolsonaro-says-the-supreme-court-is-out-to-get-him-he-not-wrong/">against the Supreme Court’s own precedents</a>, according to which it is up to law enforcement and prosecutors to conduct investigations,” Roberto Livianu, a prosecutor and Ph.D. in criminal law, told <strong>The Brazilian Report</strong>.</p> <p>Now more than ever, Brazil requires a strong Supreme Court defending its increasingly fragile democracy from abuses and threats. Chief Justice Fux’s history of trying to appease all sides at the same time gives little evidence for us to believe he will be the man to take on this historic responsibility.</p> <p>He has two years to prove us wrong.