If the Brazilian Supreme Court capitulates

Conditions for general and undisguised disobedience to court evolve

It would be good for Brazilian democracy if the Supreme Court judges didn't go around weaving conjuncture assessments to journalists' microphones, in conference rooms or private events in banks. Or anticipating judgments, praising reforms, criticizing colleagues, sending messages, making predictions, embarrassing themselves.

Not just because evaluations are, in general, dilettantish and self-interested. But because they do not fit into the institutional commitment they have assumed. Nor in the rituals for the preservation of this delicate raw material from which the authority of the judge is constituted. These are anti-institutional statements that characterize judicial impropriety.

Brazilian Supreme Court - Nelson Jr - 3.nov.21/SCO/STF

Constitutional judges in democracies around the world practice this universal maxim of judicial ethics. Courts win. From Germany to the United States, from India to South Africa. In the Brazilian Supreme Court, justices Rosa Weber and Edson Fachin set the example, but they are overcome by counterexamples.

Justice Gilmar Mendes gave a fascinating interview to journalist Daniela Pinheiro, days ago. He said there won't be a coup. Because it won't. He explained that Brazil's problems are due to Car Wash anticorruption operation, called "totalitarian". Bolsonaro, on the other hand, "borders on authoritarianism". It would have been left to him, Gilmar, to border the superheroism that fulminated Car Wash when it no longer served him, that gave birth to Augusto Aras and left an upside-down "carwashism".

He, who was an enthusiastic carwashist, author of the most carwashist act in history, the day after which he left to Lisbon for holiday, where he coordinated a conference organized by his educational company in the presence of country's party leaders. The most carwashist act in history (the lightning-fast invalidation of Lula's appointment as Minister of State, based on an arbitrary one-case legal doctrine) was never reviewed by the Supreme Court.

Justice Luis Roberto Barroso dropped a discrediting statement about the military at a German university conference. He said the military is "oriented to attack the elections". He did not even admit the authoritarian vocation of the military. They were "oriented" by a principal, not by their own agency. The well-behaved lapse was enough for the counterattack. Barroso is being charged with a military crime.

He, who has been praising the military for years. He has already stated that the military, despite never being punished for crimes against humanity, paid too high a price for the dictatorship. In a government occupied by more than 6,000 military staff, he refused to see

them in the "retail of politics". He appointed a general to the Electoral Court's transparency commission because, despite his faith in democratic resilience, he found it better to be cautious. By doing so, he gave the military another weapon to provoke distrust in the elections.

The reaction of the military is part of the rehearsed choreography of the Bolsonarista stage, a universe where the "Supreme Court dictatorship" (as well as the gay dictatorship) is already an undisputed fact. The digital infantry was also ordered to affirm equivalence between the grace granted to Silveira by Bolsonaro and the refuge granted to Battisti by Lula. Creating equivalence where there is difference, and vice versa, is the method from which many theses of authoritarian illegalism emerge.

There are many ways to "close" the Supreme Court without closing the Supreme Court. It doesn't need to invoke article 142 of the Constitution, where the generals decoded authorization for a coup (or "constitutional military intervention"). It is easier to make the institution itself innocuous and unworthy of respect. Or make the institution voluntarily renouce its authority.

The unrestrained verbosity of justices collaborates in this resignation. Although one must speak forcefully of the risks that the court runs, the individualistic cacophony does not help. This game cannot be played without coordination between justices.

While the president of the republic, in addition to ordering ministers to shut up their mouths, warns that he will not obey a decision that contradicts him (as in the case of the "timeframe" of indigenous lands, or the grace granted to Silveira), pressure grows on the Court to reopen "ways of communication with the government", "conciliation", or, in Justice Toffoli's glossary (who also calls military dictatorship a "movement"), "dialogue".

The Supreme Court has flirted, since the presidency of Justice Toffoli, with the practice of constitutional surrender and negotiation of constitutionality. The strategy may save the justices' own heads, but it does not save their biography nor democracy, nor the lives on the social fringes that are targeted by Bolsonarist violence. Let's start by using the right words, not the diversionary ones, to describe what we see.

The Brazilian Supreme Court needs support, caution and foresight, not capitulation. It needs collegiality against obstructionist individualism. The capitulation, after all, frees the bolsonarista man once and for all. He doesn't just threaten. He rapes and kills a Yanomami child, for example.