A Court Against the Republic

The Supreme Federal Court has become the gravedigger of Brazil's 1988 Constitutional Regime 

This article is also available in Brazilian Portuguese. 👉 

Lightning strikes the Supreme Court in Brasilia. Divine wrath? (photo-BBC)

By Antonio Fernando Pinheiro Pedro

Dismantling morality, censoring history, eroding institutions, unraveling the social fabric, rewriting the Constitution, judicializing national life, undermining freedom of expression, crushing press freedom, criminalizing critical thought, eliminating merit from cultural life, and degrading legal certainty in public and private relations—a roster of villainy worthy of a Justice League storyline.

Yet, this is the very mission embraced by the current judiciary of our Supreme Court.

In this article, I aim to examine this somber reality—with the clarity and objectivity that true criticism requires.

The Worst Judiciary in History

This is a case of cause and effect.

In the first decades of this century, Brazil’s economy and institutions were devoured by a sweeping populist wave—tainted by corruption scandals, misguided decisions, and cognitive biases. This tidal force dismantled pluralism and disrupted social, intellectual, and academic coexistence.

What followed were judicial investigations into corruption, impeachment proceedings, structural reforms, economic crises, further reforms, pandemic waves, and a radicalized, judicialized electoral process—all of which left us with today’s degraded atmosphere in criminal, ethical, moral, and republican terms.

Throughout this turbulent time, the 1988 Constitutional Order was put to the test—and suffered irreparable damage. The vessel meant to carry it safely across the stormy waters, the Supreme Federal Court, underwent a deep internal shift... losing both its bearing and its captain.

Amidst the upheavals, populist leaders strategically filled federal and high courts with professionals chosen primarily for their “ideological alignment” or ability to offer “support” in resolving specific issues—rather than for their actual merit.

This judicial machinery, shaped by shortsighted circumstances, began acting without any long-term perspective, focusing solely on “immediate relief” of symptoms—worsening the underlying illness. Worse still, it gained autonomy, evolving into a juristocracy bent on replacing the very notion of popular sovereignty.

This reversal of values and priorities in national politics weakened the rule of law, spawning a bloated, ineffective, and dangerously disconnected judicial elite—one that undermines the sovereignty of the Nation.

In essence, the Supreme Court reflects the political leadership that appointed its members.

Over the past decades, traditionally sober magistrates were replaced by “ideologically driven jurists.” As a result, the top tier of Brazil’s Judiciary began executing a kind of “creative destruction” of the Constitutional Order—with none of Schumpeter’s economic rationale to justify it.

The 1988 Constitution has been shredded by “hermeneutic reinterpretations” and “exegetical revisions,” performed under the bizarre lens of an unhinged legal theory—“pan-principiology”—that spread to ordinary legislation as well.

Judicial activism came to relativize laws—even retroactively. Legal certainty was eroded, with rulings overturned like seasonal trends.

Influenced by environmentalism, identity politics, theatrical displays, proselytism, and intolerance, the Supreme Court adopted a reactive, emotional stance. It digests criticism poorly and seems to pursue systematic ways to criminalize dissent.

The result: a dysfunctional body of case law that flows from the murky stew of an Orwellian “Newspeak”—allegedly progressive, globally-minded, and seasoned with politically correct platitudes. A refuge for those who claim to be enlightened—but settle for mediocrity.

The current judiciary is a crude imitation of a distorted reading of the so-called Frankfurt School—a brand of cultural Marxism that infects the “woke” posture of U.S. Democrats, has eroded Europe’s progressive movement for decades, and—here—was injected into politics and academia by left-leaning gatekeepers.

There’s no shortage of examples. One is the concept of a “state of unconstitutional affairs”—an exception-based doctrine borrowed from Venezuelan case law and imported with awe by the current justices. Another is how the definitions of “democratic” or “anti-democratic” shift depending on convenience.

These mechanisms churn out destabilizing judicial precedents—spat out in real time—disrupting the balance of power within the Republic.

In truth, this self-absorbed clique seems willing to trade national and popular sovereignty for a “globalist-progressive” project that massages their bloated egos... and promises paradise amid the inferno.

But if the content displeases, the Supreme Court’s ostentatious behavior downright terrifies. *1

The juristocratic monolith of death over the republic

Institutional Psychopathy

Nietzsche blamed poor digestion—caused by heavy German cuisine—for the deep, brooding nature of German philosophers.

That logic also applies to the internal dynamics of our Supreme Court: rife with irate episodes, recorded, filmed, and broadcast, featuring unceremonious exchanges—even "compliments"—between its members that defy judicial decorum.

The Court externalizes its personal disputes through decisions that fail to unify jurisprudence—adding insecurity rather than resolving it. These rulings don’t settle conflicts; they create them. Rather than improving governance, they tear it down.

Disproportionate behavior is mirrored in contradictory judgments. Graffiti is equated with attempted coups. Persecutory investigations with generic purposes are launched within a body that is predominantly appellate—conducted without any constitutional, legal, or procedural footing by the very individuals charged with delivering rulings.

Such aberrant actions continue, trampling over the mandates of Brazil’s other republican powers. The rule of law is shredded in the name of “saving” democracy.

When judges consider themselves "enlightened", they stop being judges and behave like Ayatollahs.

Ayatollahs Dancing the Tango

One expects conservatism and constitutional fidelity from any high court. Yet, Brazil’s STF has embraced activist “principiologism”—a doctrine that destabilizes the law itself.

Judicial activism is a sociopathic phenomenon. It robs judges of cognitive clarity. It strips away ethical responsibility and enables utilitarian behavior in favor of ideological interests.

The activist judge sees themselves as enlightened. For them, judicial authority becomes a kind of subprime investment—a risky credit applied to decisions that don’t solve but rather amplify conflicts.

Driven by this distorted cognition, activist justices become Ayatollahs—religious sages who interpret law guided by personal beliefs about the Quran.

In this analogy, the STF’s panel of Ayatollahs seeks to "illuminate" Brazil’s Constitutional Order using their teleological beliefs—disregarding time-tested legal duty and practice.

Here, ego triumphs over reason. As a result, Brazil’s eleven justices effectively function as “eleven separate courts,” each bolstered by lavish technical staff and personal “instructor judges” assigned to their chambers.

The dysfunction plays out with endless 6–5 votes in plenary sessions—rulings delivered through kilometers-long opinions ghostwritten by aides. A haunting echo of Gardel’s iconic tango, “Por Una Cabeza,” lamenting lost bets on horse races… and doomed love affairs.

This institutional disarray exacts a steep price: it forces Brazil’s other branches of government to twist and contort their responsibilities just to avoid confronting the high court’s volatile rulings. That contortion has cemented asymmetries with blatantly liberty-eroding effects. *2

Who suffers most? The Republic.

The Dictatorship of the Pen

The Supreme Court’s “tango” feeds the inquisitorial outbursts of the Federal Public Prosecutor’s Office—which has long been ideologically compromised and politically manipulated.

To be fair, part of the institution is currently fighting to overcome the destructive syndrome of the Pen Dictatorship—a ruinous perversion of state administration I addressed years ago.

Nevertheless, the STF’s judicial activism provides fresh ink for that arbitrary pen, enshrining a robe-clad dictatorship in Brazil’s daily life.

Aesop once warned: "Every tyrant finds a righteous excuse to justify their tyranny."

The Supreme Court went further: it transformed the activist judge into an enforcer. A dysfunction made possible by the outrageous autonomous powers—free of oversight—granted by the 1988 Constitution.

This regime staged a “Coup d'État” in which an unelected caste dismantles popular sovereignty, interferes in legislative processes, revokes and hunts down parliamentary immunity, attacks press freedom, and destroys free speech—offering a layer of jurisprudential ink to the authoritarian system now taking shape in Brazil.

The Cure for the Disease

History will inevitably judge this current Brazilian judiciary. And from the vantage point of time, it will do so mercilessly.

To hold the justices of the worst judiciary in the Republic accountable—criminally, civilly, and administratively—for their abuses is the constitutional pathway.

There’s no shortage of reasons. For years, STF activists have ground down the Constitutional Order, ignoring Articles 1 and 2 and routinely violating various provisions of Article 5 of Brazil’s Constitution.

Both the STF and the Electoral Court (TSE) have betrayed popular sovereignty under the guise of defending it, encroaching on powers and responsibilities meant for Brazil’s other branches of government—as outlined in Articles 49, 51, and 84 of the Magna Carta, which they were sworn to protect.

Article 52 of the Constitution may offer the antidote to this infection. But it's widely acknowledged that the problem runs deeper than the idiosyncrasies of any individual judge.

Unfortunately, the Senate's servile cowardice—and the sarcastic complicity of the current Lulopetista government—poses a serious risk: replacing the current justices might yield something even worse.

The solution, therefore, may lie in a sweeping political and institutional realignment. A constitutional reform to reshape the Court, starting with term limits for justices—single, non-renewable mandates.

The pressure that started with the 2013 protests won’t stay bottled up by media spin or political repression for long. At this pace, rupture is inevitable.

Historical processes always transcend the ink of a judge's pen… and the orders of a politicized, subservient police force.

Ink eventually runs dry. What endures is Justice.

Conclusion

We’re on the brink of a rupture. We’ve already crossed the threshold of what protects the rule of law. This Hamlet-like affliction poisons the Republic and threatens to extinguish democracy in Brazil.

If the rule of law disappears, all that remains is the people—and democracy. And both must be rescued.

Throughout history, it’s always been the people and chaos that gave birth to a new order. It’s a law of physics to which biology, chemistry, and political history inevitably submit.

It’s time, therefore, for the Senate to recover what dignity it still holds—and confront the dysfunction of the Supreme Court.

It’s time to mandate the obvious: judges must never publicly comment on political matters or speak beyond the contents of a case—whether before or after ruling—unless summoned by the Senate.

Let it be said again: the poor quality at the top of Brazil’s judiciary reflects the broader decay of the country’s institutions.

Our task now is to patiently and purposefully reclaim our popular sovereignty, even under the constraints imposed by a cowardly establishment.

The Romans had a saying: “power and glory are fleeting.” And so the ink of today’s careless scribes will dry—and the pen of history will correct the farce they try to force upon us.

Data venia, history will one day record—relentlessly—that the worst Supreme Court judiciary buried Brazil’s 1988 Constitutional Order in the graveyard of the Republic.

Notes:

*1 – Principle-ism Without Principles
The practice of so-called pan-principle-ism—a behavioral dysfunction that relativizes the literal meaning of legal norms in favor of non-codified principles—has worsened the phenomenon of principle-ism without principles.

Frequently, principles not literally stated are invoked, extracted through teleological interpretation of the Federal Constitution.

This trend—riddled with subjectivism, messianic tendencies, and ecological zeal—has fostered a “coup-oriented” culture within Brazil’s judicial bureaucracy. It has been further aggravated by a utilitarianism that has gravely compromised the implementation of law and order within the legal system.

The outcome of this concoction is toxic. Today, within Public Administration, there is a fear of decision-making and a peculiar comfort in obstructing, denying, persecuting, and demobilizing.

*2– “Coloring Book” Constitution
Reduced to a mere “Coloring Book” due to the Supreme Court's jurisprudential seesaw, the moribund 1988 Constitution has become a ladder for principle-based outbursts—empowering judges across jurisdictions, intoxicated by the Court’s supreme craving for judicial protagonism.

This “Coloring Book Constitutional Law” of the Supreme Court has become a go-to manual in the world of judicial activism and politically correct militancy.

Such activism has become a safe haven for mediocrity. It impoverishes even academic debate and plunges classrooms into intellectual misery.

In parallel with this mediocrity came reactivity. Operation Car Wash—the largest crackdown on high-level corruption in any democratic country—provoked the Court’s idiosyncratic behavior.

The establishment briefly stumbled over its own arrogance and “allowed” a task force, formed in a “distant” federal court in Paraná, to astonish the world by jailing major players from the international corruption ocean, recovering impressive sums stolen from the Brazilian people.

Once recovered from the shock, the activist’s “sense of justice,” once tied to the cold letter of the law, reversed itself—now prioritizing legal technicalities over justice, still in the name of the same activism…

This kaleidoscope of symptomatic contradictions has extended itself synergistically, producing a feeling of impunity and judicializing the very foundations of the Nation.

The author:

Antonio Fernando Pinheiro Pedro is a lawyer (USP), journalist, and environmental consultant. He served as Executive Secretary for Climate Change for the Municipality of São Paulo from June 2021 to July 2023. A founding partner of Pinheiro Pedro Advogados, he is a director of AICA (Corporate and Environmental Intelligence Agency). He is a member of the Brazilian Lawyers Institute (IAB) and Vice President of the São Paulo Press Association (API). He was the first president of the Environmental Commission of the São Paulo Bar Association (OAB/SP), president of the Technical Chamber of Legislation of CEBDS (Brazilian Business Council for Sustainable Development), Chairman of the Environment Committee of AMCHAM (American Chamber of Commerce), and a consultant to the World Bank, the UN, and several other organizations charged with improving the state's legal and institutional framework. He is a member of the Strategic Studies Center of the Think Tank Iniciativa DEX, a member of the Superior Council for National Studies and Politics of FIESP (Federation of Industries of the State of São Paulo), President of the Water University Association - UNIÁGUA, Editor-in-Chief of the Portal Ambiente Legal and responsible for the blog The Eagle View.