Supreme Court v. Bolsonaro has a new chapter

Justice Celso de Mello, the longest-serving member on the Supreme Court, is set for mandatory retirement as he turns 75 in November. His last months in the court, however, promise to be explosive — as his war of attrition against President Jair Bolsonaro continues.

The justice is the rapporteur of an investigation into Mr. Bolsonaro’s suspected illegal interference with the Federal Police. The probe started after former Justice Minister Sérgio Moro resigned, after accusing the president of trying to shield his family and friends from investigations by picking a friendly police chief for the Feds’ Rio de Janeiro office.

Back in May, Justice Mello made public the footage of an April 22 cabinet meeting that presented Brazilians with an explicit display of Bolsonarism in action. The president appeared on tape defending Brazilians’ right to arm themselves and fight against quarantine rules that had recently been enforced by state governors. At one point, the pandemic was even described as an opportunity by Environment Minister Ricardo Salles. He mentioned taking advantage of the media focus on Covid-19 to “

run the cattle herd” through the Amazon, “changing all the rules and simplifying standards.”

Then, in June, Justice Mello sent a message to his colleagues, comparing the current moment to the crumbling of the Weimar Republic in Germany, as Adolf Hitler became chancellor. “With all necessary caveats, the ‘serpent’s egg’ seems to be ready to hatch, similar to what happened in the Weimar Republic,” he said.

Now, Justice Mello has once again put the government on the spot. He refused the Solicitor General’s request to allow Mr. Bolsonaro to give a written testimony to defend himself from the allegations of tampering with the Federal Police. Instead, the justice said that as a man “under investigation,” the president must be treated as any other citizen and not enjoy the “prerogatives usually reserved to heads of state.”

It is worth noting that other members of the Supreme Court granted that benefit to former Presidents Michel Temer and Luiz Inácio Lula da Silva. Both found themselves facing corruption charges by Operation Car Wash. In his decision, Justice Mello said he respected his peers’ rulings, but didn’t agree with them.

Fuel for an institutional crisis

“It remains to be seen how President Jair Bolsonaro will react to Justice Mello’s latest move — but we should expect a deepening institutional crisis on our way,” says political scientist Leonardo Barreto.

As The Brazilian Report revealed last month, Mr. Bolsonaro had discussed sending troops to “shut down” the Supreme Court on multiple occasions with close aides. While the president’s advisers were able to talk him out of such a move, Mr. Bolsonaro has consistently endorsed demonstrations against the Supreme Court.

And this clash comes at a time when the reputation of Brazil’s highest court has never been lower — after years of inconsistent judgements and perceived political overstepping. 

It also happens as the court has recently appointed a new Chief Justice, with Luiz Fux taking the court’s reins from Justice Dias Toffoli.

As our September 8 Weekly Report explained, Justice Toffoli’s stint as Chief Justice has been widely considered a total disaster — even by his peers — as he went out of his way to please the government. While Chief Justice Fux reportedly wants to restore the court’s image, he has a reputation of trying to appease all sides at the same time and has been a strong advocate of what he calls “institutional harmony.” 

While he insists this is not the same thing as appeasing the government, Mr. Bolsonaro has proven that he doesn’t accept disagreements harmoniously.

A divided court with a broken reputation faces an increasingly popular president who has been rather open that he would like to shut the Supreme Court down if he could get away with it. This seems like a perfect recipe for a prolonged institutional crisis. 

It remains to be seen who replaces Justice Mello, but Mr. Bolsonaro is likely to appoint a crony in his place if he can, perhaps a “terribly evangelical” judge, as he once suggested. The replacement would inherit Justice Mello’s case — meaning Jair Bolsonaro could be in the privileged position of choosing the person who will judge his alleged misdeeds.

We are confident to say that the president will be safe for the foreseeable future.