Will Bolsonaro release Lula?

Several topics were touched upon by Congressman Jair Bolsonaro, the PSL candidate for President of the Republic, on the latest Roda Viva program on TV Cultura. The interview covered issues the Rio de Janeiro politician typically addresses most frequently in the press, at private events, on social media, and in the Chamber of Deputies. These topics range from torture and public security to accusations of racism and biodiversity protection. However, one issue that recently generated much controversy among legal experts was not brought up during the interview, perhaps because it involves specialized matters that don't always attract the attention of the general public. Earlier this month, Congressman Jair Bolsonaro stated in an interview with TV Cidade that he would increase the number of Supreme Court Justices to twenty-one members, adding, according to the Congressman, "ten impartial people." How might this statement influence the Supreme Court's decision regarding Lula's freedom and his right to run for President of the Republic?

The Brazilian Supreme Federal Court, among other responsibilities, functions as a constitutional court and acts as a kind of "safety valve" to ensure that institutions respect the Constitution. It is therefore legitimate for the STF to have political concerns. This does not involve any specific political parties or groups. The STF's political sphere of influence relates to, or should relate to, its understanding of what is happening in Brazilian society and its importance in interpreting the Constitution. In the real world, however, members of the Court embrace ideological spectrums and, depending on the case, may also sympathize with or have questionable connections to political parties or leaders. This latter distortion does not occur only in Brazil and can be a source of serious institutional instability.

In 1933, amidst the economic crisis generated by the Stock Market Crash four years earlier, Franklin Delano Roosevelt was sworn in as President of the United States for the first time. At the time, in order to minimize the effects of structural unemployment and resume the process of economic recovery, Roosevelt developed a broad set of legal measures and public policies called New DealIn general terms, it represented a broad transformation of the role the State had played in the economy up to that point. It was a decisive phase of political and economic transition.

The public sector would create regulatory frameworks, as well as become interventionist and responsible for direct investments in sectors previously dominated exclusively by the private sector. Despite the severe economic crisis – unemployment around 30%, for example – the New Deal It faced very strong resistance in various sectors of American society, especially from large corporations and the magnates of the time. However, in the end, perhaps the greatest obstacle to change was the Supreme Court and its radically liberal composition: men who were born shortly after the Civil War (1861-1865) and who did not accept state interference in the invisible hand that guided the market and social life. 

In October 1933, the number of unemployed had fallen sharply, and the dollar had appreciated by as much as 33% by the end of the year. However, sectors linked to capital and industry legally challenged several of the laws and acts that gave rise to... New DealIn a period of three years, the Supreme Court and its stance against state intervention in private affairs had brought Roosevelt's economic recovery plan virtually to its knees, declaring unconstitutional—that is, without any legal value—such important laws as the National Industrial Reconstruction Act, the Railroad Retirement Act, and the Agricultural Readjustment Act. etcThe Supreme Court became the last bastion of resistance to American economic liberalism and the crisis of 1929.

Elected with a large majority in Congress and enjoying great popularity, Roosevelt reacted to the Supreme Court's decisions and proposed a reform of the Federal Judiciary. Among other measures, each member of the federal courts – including the Supreme Court – who reached seventy years of age while in office would create a supplementary vacancy on the court. In the Supreme Court, composed of nine justices, there were six members over seventy years old, thus allowing Roosevelt to appoint six more judges, increasing the number of members of the Court to fifteen and obtaining the necessary majority to continue the public policies of the New DealIn this scenario, a member of the Supreme Court (Owen Roberts) changed his position and altered the Court's understanding of Roosevelt's economic recovery plan. The proposal to increase the number of justices did not prosper and was rejected by the Senate on May 18, 1937. Gradually, the Supreme Court adjusted to the new scenario.

Bolsonaro acted like Roosevelt, but in a preventive and reckless manner. He sent a warning to the Supreme Court. He doesn't consider the Supreme Court capable of changing its position and becoming a court of exception serving violence and punitivism against "all the banditry" that exists in the peripheries of Brazil. If elected, he will appoint ten more members to gain control of the Court. He presented perhaps the only idea capable of keeping a Supreme Court Justice awake at night today.

It's impossible to know for sure what kind of reaction such a statement provoked among the members of our Supreme Court. In this case, the Supreme Court is not facing a President elected with very high popularity and a large majority in the National Congress. Bolsonaro is a candidate who could lose the elections and leave the electoral process without any chance of interfering in the future functioning of the institutions. On the other hand, if Bolsonaro rises in the opinion polls, the argument that Lula should remain imprisoned in Curitiba until mid-2019 could suffer some setbacks. After all, Lula's freedom and candidacy, who is by far the name with the most voting intentions in the country, could be a reliable guarantee that the Supreme Court will continue with its current number of members and be able to follow the more or less tortuous democratic path it has chosen to tread in recent years.