Examining the Brazilian Supreme Federal Court’s Expanded Powers in the Bolsonaro Era: A Win for Democracy or a Turn Toward Autocracy?

As Jair Bolsonaro rose to popularity and was elected the 38th president of Brazil in 2018, the global community grew concerned over his very public disdain for the country’s democratic institutions and admiration for Brazil’s 22-year-long military dictatorship. The Bolsonaro administration was marked by repeated attacks on the judiciary, a heavily criticized response to the COVID-19 pandemic, and, eventually, the storming of Congress and the Brazilian Supreme Court by Bolsonaro’s supporters– mirroring the January 6th insurrection in the U.S. However, the most significant aspect of the Bolsonaro presidency may not lie solely in his actions, but in the response from other branches of government. In particular, Brazil’s Supreme Federal Court swiftly positioned itself as a check on Bolsonaro’s authority by granting itself powers not explicitly authorized by Brazil’s Constitution of 1988. These powers include the ability to unilaterally create investigations and assume simultaneous roles as victim, prosecutor, and judge. While praised by many individuals defending democratic and liberal values in Brazil, questions persist regarding the legitimacy of the Court’s actions. This note discusses why the expansion of powers by the Court during the Bolsonaro era, ostensibly undertaken out of necessity to safeguard democracy, may lack legal and constitutional legitimacy under Brazil’s current constitutional framework. Rather than fortifying Brazil’s still-incipient democracy, the Court’s extra-constitutional expansion of power can possibly destabilize it further and potentially threatens Brazilians’ civil liberties.