Last Wednesday, the Supreme Court of Brazil rejected the habeas corpus petition of former Brazilian President Lula da Silva.
The court’s Chief Justice, Cármen Lúcia, cast the tiebreaking vote that sealed his fate.
Although the decision adds a new chapter for Operação Lava Jato (Operation Car Wash) and might be creatively portrayed in the next season of the Netflix show “The Mechanism,” it also makes an interesting case study for assessing the partisanship of the court.
As in the American system, Brazil is a federal republic with three branches of government at the state and federal levels. Although there are significant differences in the electoral rules for the executive and legislative branches, the nomination of supreme court justices is basically the same. The constitution gives Brazil’s president of the duty to nominate a new justice when there is a vacancy and then submit this nomination for the approval of the Senate.
During the 13 years with the left-wing Workers’ Party (PT) at the helm of Brazil’s government, Lula (2003-2010) and his successor, Dilma Rousseff (2011-2016) had the opportunity to appoint eight justices. After President Rousseff’s Impeachment in 2016, sitting President Michel Temer had the opportunity to nominate just one. Thus, the PT majority on the court stands solid at seven to four.
In the U.S., Supreme Court rulings on certain issues tend to fall predictably along party lines. When Operation Car Wash started investigating top Brazilian politicians like Lula da Silva, many wondered if we would see the justices scrambling to support party over country.
The consequences of such a stacked-deck ruling would have been profound and terrible. Had it happened, no lower court would have ever bothered again to show fairness when politicians came up on corruption charges.
But fortunately for the rule of law, that’s not how it turned out. Among the eleven justices, only the three most senior and the most junior one were not appointed by either Lula or Rousseff. Hence, a complete partisan vote would have come out 7-4 in favor of Lula’s habeas corpus petition.
But what actually happened was not partisan at all. The three most senior justices (Celso de Mello, Marco Aurelio Mello, and Gilmar Mendes) who were not PT-appointed all voted to grant Lula’s appeal, along with two of the three justices appointed by Lula himself (Ricardo Lewandowski and Dias Toffoli). But all four justices appointed by Rousseff (Luiz Fuz, Rosa Weber, Luís Roberto Barroso, and Luiz Edson Fachin), plus the one appointed by President Temer (Alexandre de Moraes) voted to deny it. It was Lula’s own appointee as Chief Justice, Carmen Lucia, who broke the tie by voting against him.
This case was the most significant that the Supreme Court has heard in Operation Car Wash so far. Thankfully, it demonstrated that justice is not purely partisan in Brazil. Given the sides the various justices took, it actually appears that perhaps seniority played a much larger role in the justices’ votes than partisanship.
We still cannot say if this is going to be the case in the future, but Brazil has taken an enormous step in the direction of strengthening the rule of law. Operation Car Wash has sent billionaires, congressmen, senators, and governors to jail. And now, after the impeachment of a seating president for breaking the law, a former president is in jail, and he was put there by his own political appointees.
Mauricio de Freitas Bento is a specialist in public policy and a freelance writer in Brazil.
