Bolsonaro victory would risk independence of Brazil’s Supreme Court

President Jair Bolsonaro is prompting fears for Brazil’s democratic system by threatening to appoint new judges to the Supreme Court, the central institution to the country’s young democracy. Between the two presidential rounds, Bolsonaro is blowing hot and cold on the issue – making threats to galvanize his base, then backing down to reassure undecided voters. If re-elected, however, the far-right president could well find the numbers to make changes to the court.

The outcome of the bitter contest between Bolsonaro and social democratic ex-president Lula Inacio de Silva is hard to predict, ahead of the second round of Brazil’s presidential election on October 30.

After getting 48 percent of the vote in the first round on October 2, Lula started trying to reach out to evangelical Christians and centrists in a bid to overcome his far-right rival. Bolsonaro performed much better than anyone expected with 43 percent and is more confident than ever that he will be re-elected.

Bolsonaro has alternated between a presidential posture and well-calculated outbursts since the first round – a strategy that has played well among his far-right, anti-system base. This includes fierce rhetoric about the Brazilian Supreme Court.

Surrounded by journalists in the reception room of the presidential palace in Brasilia, Bolsonaro launched into invective on October 7. He accused the press of supporting Lula, then ranted about the judges on the Supreme Court, calling one of them, Alexandre de Moraes, a “dictator”.

The dispute between Bolsonaro and de Moraes goes back to 2021, when the judge ordered an investigation into the president for “disinformation”, after Bolsonaro questioned the integrity of the electronic voting system Brazil has used since the 1990s.

In the meantime, Bolsonaro told journalists that it had been “suggested” to him that he should increase the number of judges on the Supreme Court. “There are people who tell me: ‘You only have to appoint five more’,” he said. “I can’t appoint five more. We’ve got to talk about it in parliament first. We’ll see after the elections.”

Following Bolsonaro’s comments, his Vice-President Hamilton Mourao also said changes should be made to the Supreme Court, both in terms of his composition and mandate – alleging it is an “autocratic decision-making system”.

Guardian of the Constitution

Brazil’s highest court, the Supreme Court is the guardian of the country’s constitution and its decisions are not subject to appeal. The court’s 11 judges are appointed for life by the Brazilian president and must retire at the age of 75.

Currently the court has seven judges appointed by Lula and his left-wing successor Dilma Rousseff, two appointed by centre-right presidents and two appointed by Bolsonaro during his term. Whoever wins the presidential election will appoint at least two judges.

By saying he wants to change the Supreme Court’s composition, Bolsonaro is following in the footsteps of the military dictatorship that ruled Brazil from 1964 to 1985. The generals appointed five more judges to the court – making it more docile without going so far as to abolish it, thus maintaining a veneer of democratic institutions at work.

After Bolsonaro’s inflammatory statements prompted an outcry, he tried to adopt a more moderate tone on October 9. During a four-hour conversation with a You Tuber, Bolsonaro looked relaxed and smiled often, while wearing the shirt of Brazil’s beloved national football team. He said that if the Supreme Court “cool” its attacks on him, he might abandon his plan to appoint new judges, which would allow him to get a majority on the bench supporting him during a potential second term.

A well-worn tactic

Bolsonaro is using one of his trademark tactics, noted Armelle Enders, a historian of contemporary Brazil at Paris 8 University: “Part of his modus operandi is to make threats and then back down. First, he threatens to rile up his base – the hard core of his supporters – and then he backs down because he knows that making remarks suggesting he wants a coup is bad for his poll ratings. By backing down, Bolsonaro normalises himself again, reassuring many who harbour reservations about him.

The far-right president played a dangerous game along these lines in September 2021. He called on his supporters to gather inside the Supreme Court in Brasilia, before asking them to remain calm as they responded to his call en masse.

“Bolsonaro’s practice is to threaten institutions and to ignore them. For him there is no such thing as institutions, only friends and enemies,” Enders said. “That said, the Supreme Court has not bothered Bolsonaro much [during his time in office]. It hasn’t stopped him from doing anything substantial that he wanted to do. But the way Bolsonaro and his supporters see the world, it is politicised because it doesn’t support Bolsonaro’s agenda – making it one of their enemies.”

A majority to change the court?

The current episode with the Supreme Court demonstrates once again Bolsonaro’s ability to flirt with criticism of Brazil’s democratic system without tending to cross a line. During his four years in office, Bolsonaro has indulged in threats, invective and outrage, then (sometimes) rows back. The far-right Brazilian president has shown himself to be a master of this tactic, no doubt inspired by ex-US president Donald Trump.

Candidates supported by Bolsonaro performed very well in Brazil’s parliamentary elections held on the same day as the first round of the presidential polls. This may give Bolsonaro the majority he needs to change the constitution and thus the composition of the Supreme Court.

The Liberal Party with which Bolsonaro is affiliated won 99 out of 513 seats – the best result for a single Brazilian party since 1998. Adding the seats won by the Progressive Party and the Republicans – two other parties that support Bolsonaro unconditionally – brings the number definitely in his camp up to 190, more than a third of the total number of MPs. In the Senate, right-wing parties have 53 percent of the seats; Bolsonaro’s party has 13 of the 81 seats.

So building on those numbers, it is possible that Bolsonaro could find enough votes to make good on his threats. “The biggest risk to democracy in a second Bolsonaro term is him putting more pressure on the judiciary,” said Oliver Stuenkel, a professor of international relations at the Getulio Vargas Foundation in Sao Paulo.

This article was translated from the original in French.