The political crisis in Brazil has escalated in recent weeks, and increasingly put the Supreme Court (STF) in the crosshairs of the President. In early August 2021, the Supreme Court (STF) responded to a request by the Superior Electoral Court (TSE) to investigate Jair Bolsonaro for disseminating fake news about the use of electronic voting machines in Brazil. In response to this STF ruling, rendered by Justice Alexandre de Moraes, Jair Bolsonaro declared that “his [Moraes’] time will come. Because he has been playing outside the limits of the Constitution for a long time. I do not intend to exceed the limits in order to question these authorities, but I believe the time for this is coming.” Speaking to pro-government demonstrators at marches held on the September 7 independence day holiday, Bolsonaro doubled down on his attacks, stating that: “Either this Justice [Justice Alexandre de Moraes] fits in or he asks to leave.”
The STF’s involvement in political matters has been steadily expanding for years. Especially since the Mensalão case (a corruption trial involving members of the administration of President Luiz Inácio Lula da Silva) in 2012-13, there has been a significant increase in the media coverage of STF’s activities. And there have been many prominent and controversial court rulings in recent years, such as the decision to suspend the congressional mandate of the president of the Chamber of Deputies, Eduardo Cunha; the decisions surrounding Dilma Rousseff’s impeachment, and repeated – and contradictory – decisions about whether defendants can be imprisoned before all appeals have been exhausted.
The increasing controversy surrounding the high court suggests that greater attention needs to be paid to how Brazilians view the judiciary. To what extent are Brazilians familiar with the STF? Does the general public keep up with these decisions? What impacts do judicial decisions have on the public’s perception of the court’s legitimacy? To this end, the Fundação Getulio Vargas Law School has been conducting regular public opinion surveys of attitudes toward the court for more than a decade, analyzing public knowledge about the court, as well as measuring public confidence and views on the institutional legitimacy of the court.
Our most recent ICJBrasil survey, reflecting field research carried out between November 2020 and January 2021, indicates that Brazilians agree that democracy cannot function well without the STF. Most respondents think that there need to be limits to the Court’s power to overturn acts by other branches of government. But they also largely support the court against presidential interference, rejecting the possibility that the President might close the STF if he disagrees with its decisions, or that he might replace justices at will.
The main challenge for studies on trust and legitimacy in the Supreme Court has been how to distinguish between the intrinsic features of the role it plays in the country’s politics (legitimacy or diffuse support) and the attributes linked to the performance of the Court and of its members according to the expectations regarding its role (confidence or specific support). Drawing on the work of Gibson, Caldeira, and Spence, we sought to verify Brazilians diffuse support for the court, and particularly, their perceptions of how the STF functions.
There are some worrisome signs about the Court’s legitimacy. Among Brazilians who claim knowledge of the Supreme Court (80%), 55% responded they do not trust the Court (against 42% said they do). There appears to be a partisan tinge to this perspective: the percentage of people who trust the Court is higher among those who voted against Jair Bolsonaro (47% trust), slightly higher among those who claim to know the Court’s competencies well (45% trust) and higher among the less well-off (earning up to the minimum wage; 51% trust).
Concerning the legal authority of the Court, 58% of respondents agree that “the STF’s right to annul laws issued by other powers should be reduced”, whereas 40% disagree. The level of agreement with this statement is higher among respondents who said to have voted for Jair Bolsonaro in 2018 – 66% agree, compared to 53% of those who said not to have voted for him.
With regard to the distinction between the Supreme Court and conventional politics, the greater the knowledge of the Court’s authority, the greater the recognition that the court is different from the electoral branches: 61% of Brazilians who claim to understand the Court’s competences well do not see the STF justices as traditional politicians. By contrast, interviewees in general split as to whether the court is political or not: 49% agree that the STF justices are the same as any other politicians, and 48% disagree (FIGURE 1). Among Jair Bolsonaro’s voters, a clear majority—56%—believe that STF justices are like other politicians.
Despite these somewhat disturbing findings about the perceived politicization of the Court, Brazilians seem to be supportive of the Court against external interference. Most respondents (76%) disagree with the assertion that the President may close the Court in periods when the country is experiencing difficulties (FIGURE 2). Most respondents (62%) do not believe that justices may be replaced by the President when the rulings they render are contrary to the government’s agenda. Lastly, 58% of respondents affirmed they disagree with the statement “If the STF starts to make too many decisions with which most people disagree, it is better to close the Court”, acknowledging the Court’s counter-majoritarian role.
The survey suggests that the STF has popular legitimacy, with diffuse support from a majority of the population. This may serve as a fundamental bulwark against the attacks the President has been launching against the Court and more broadly, against Brazilian democracy. We continue to monitor this vital gauge of public opinion about the judiciary, which may serve as an early warning system of the Court’s ability to weather the increasing attacks against it.
FIGURE 1. Agreement with the statement “STF justices are like any other politicians”, according to the declared vote for Bolsonaro in the last elections and to their knowledge about the STF competences
FIGURE 2. Agreement with the statement “When the country is facing difficulties, it is justifiable that the President of the Republic close the Supreme Court and govern the country without the Supreme Court” according to the declared vote for Bolsonaro in the last elections and to the knowledge about the STF competence
Source: authors, based on data from ICJBrasil, 2021. Base: 1.326 interviewees who claimed to know the STF or to have heard of it.
Fabiana Luci de Oliveira is Associate Professor in the Department of Sociology at the Federal University of São Carlos. Full bio here.
Luciana Gross Cunha is Professor at the Fundação Getulio Vargas Law School in São Paulo. Full bio here.
Luciana de Oliveira Ramos is Professor at the Fundação Getulio Vargas Law School in São Paulo. Full bio here.
Photo image: Roberto Castro – MTUR
