Fux, a Supreme Court to call “mine” and the decline of Justice

Supreme Court Justice Luiz Fux has been working tirelessly to prove that the Brazilian Judiciary not only deserves, but needs and urgently requires a decolonial reform… for at least 100 years. It is inadmissible to imagine an unjust, (in)convenient, immoral, and ignoble justice system. The only "i" that should represent the axiology of/in Justice is that which applies to its condition of Impartiality, something that the Brazilian Supreme Court – and its "variants" throughout the country – have relegated to the background, or to the strict principle of "when we can, we will" [Justice, in fact].

In the last session of the Supreme Court's First Chamber, during the trial of the fourth part of the attempted coup, Fux chose to throw a lot of mud at what could be considered credibility for the justice system. “My previous understanding (...) we judged many cases, although supported by the logic of urgency (...) incurred injustices that time and conscience no longer allowed me to sustain. My realignment does not signify weakness of purpose, but firmness in the defense of the rule of law. (...) “it is not immobility that sustains the moral authority of judges, but rather the capacity to repair errors, to reconcile society,” stated the minister. Pure fallacy! The crudest rhetorical deception!

If a rigorous investigation were conducted using the linguistic theory of discourse analysis, an immense number of aberrations would emerge from this magistrate's recent rulings. There are countless layers. However, for the purposes of this article, we will focus on only two: the hypocrisy of the individual; and the discrediting of the Justice system.

In the first case, it is clear that this judge treats similar cases one way or another depending on the photograph on the cover of the case file. That is, for Luiz Fux, "what's good for the goose isn't good for the gander." And this is not an assumption. There are dozens (now, on January 8th, hundreds) of examples to illustrate this.

In the second attempt, we need to ask ourselves with the utmost determination: Is the law applied within a jurisdictional institution truly valid? Is justice, as a dimension of the state, imponderably attainable? Is the judge truly authorized to also be a man/woman, that is, legitimized for fallibility? Does the Constitution, through each of its institutions individually analyzed in a judicial manner, honestly possess the potential for 11 interpretations that are equally legitimate, or only one interpretation capable of reaching the authentic dimension to be called just? (Let us return to the questions to ensure that we are analyzing them exhaustively and not evasively.)

To make matters worse, given the growing despair surrounding the axiological application of law within the Supreme Federal Court (STF), Fux requested that the Court's president, Luiz Edson Fachin, move him from the 1st to the 2nd Chamber of the tribunal.

The fact is that the magistrate's maneuver has much less to do with his discomfort with his "colleagues" in the First Panel. Fux's switch is not a trivial event like a left-handed candidate who, upon arriving at the exam room, finds himself in a right-handed seat and asks the proctor to change places, occupying a desk that better suits his writing side. The morality of the Supreme Court is arithmetic. The law of the Supreme Court is mathematical. A certain individual who, in need, comes knocking on the doors of that Court, before counting on any expectation of Justice being the supreme reigning principle, needs to rely on luck, offer prayers to all the entities he believes in (or comes to believe in), climb the steps of churches on the highest hill in some place in the world on his knees, but never count on the objectivity of the Judiciary: it does not exist. Let's see why.

If the dispute involves business interests, such as a landowner versus a worker, for example, you don't need Minister Gilmar Mendes involved. His voting record is overwhelmingly favorable to the ruling class. However, if the dispute's civilizing aesthetic evokes 19th-century values, especially conservative and often cruel agendas, versus any need for progressive values, the votes of Nunes Marques and the terribly evangelical André Mendonça reveal their tainted ideologies, far removed from the ideal of justice. Thus, in the justice system, "every head is a sentence." Given this, we ask again: where is the irrefutable and unwavering line of law applied in the courts?

The situation becomes complicated when Luiz Fux, who has always been in the liberal camp and very close to a neoliberal alignment, now joins fascism and denialism (including legal denialism). And moving on to the Second Chamber, where the other two who have not voted even once to deliver justice and, at the very least, fulfill the constitutional promise; on the contrary: with their conservative agenda, Mendonça and Nunes Marques have presented extremely controversial votes in the Supreme Court, even for the traditional ideology of the oligarchies that sprang from the caravels of Portugal. The three judges will form an invincible meta-collegial body. That is, there is no possibility whatsoever of expecting, in judgments of general repercussion, of delicate, complex, controversial and fundamentally urgent matters for society, that these three individuals will vote without the burden of prejudices and biased beliefs (watered with fallacies and convoluted rhetoric of Law) influencing their decisions.

This is not simply about one side of society winning against all the arguments presented within the Supreme Court. It is, however, the brutality of fascism and the permanent, effective threat to democracy that will dominate one faction of the Supreme Court, a faction that, by regulation, has a final and binding character in its decisions; whose rulings hold symmetrical and ultimate legality, signifying the decision of all 11 justices when matters (cases) are decided there. It is Luiz Fux's court, but also the individual court of each ideology, regardless of whether it is just or unjust; therefore, it matters far less than the technique of law applied to a sadistic, selfish arithmetic, or to the sad, customary game of judicial Russian roulette.

Honestly, Deltan Dallagnol, Sergio Moro, and the Lava Jato gang were right when they said: “in [Luiz] Fux we trust.” They can trust him; we can't, because the truth is that now, Bolsonarism, as a social pathology, can finally say: we have a court to call our own. And it's there, in the Second Chamber of the Brazilian Supreme Court. And that, being a legitimate place of Justice, is its decadence in itself.