Self-defense and Counterattacks

Abstract

A key part of the academic literature on judicial behavior maps the recent relationship between supreme courts and authoritarian or autocratic legalist regimes as ambiguous. In fact, supreme courts seem to give the seal of constitutionality to economic measures supported by the liberal discourse and, concurrently, to block authoritarian movements stemming from the head of the government. The behavior of the Brazilian Supreme Court during Bolsonaro’s administration demonstrates this ambiguity, but gaging Bolsonaro's offensives depth and breadth and detailing the Court’s reactions remain to be better examined. By using the qualitative methodology of the decision discourse analysis and the case study technique, the present article assesses the STF’s behavior when judging the former congressman Daniel Silveira. The research focuses on evaluating the Criminal Action 1.044, derived from Inquiry 4.781, in which the then federal deputy Silveira was convicted, as well as the Court's reaction to the Presidential Decree of April 21, 2022, by which the then President granted an individual pardon to the mentioned federal representative. By observing the attacks directed to the STF, which includes the issuing of the cited Presidential Decree, the text finds that the movements and the institutional backlashes of the Brazilian Supreme Court may be categorized as either self-defense or counterattack strategies, constituting, ultimately, the defense of the 1988 constitutional regime itself. The article concludes that Bolsonaro and Silveira sought to exploit the inefficiencies of a democratic, institutional arrangement to corrupt the bases of democratic constitutionalism, illustrating the parasitic using of political-legal forms of authoritarianism by individuals and institutions in fragile normative structures realities.