Published by The Lawfare Institute
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We haven’t seen a Latin American judiciary move aggressively against an authoritarian attempt on democracy since Colombia did so in 2010. But in the lead-up to Brazil’s 2022 presidential election, Brazilian Supreme Court justices launched wide-ranging investigations into fake news about the election, authorized a raid against businessmen who had texted about a possible coup d'état, ordered the arrest of a member of the Brazilian legislature who had advocated for a military dictatorship, and fined regular citizens for online posts against Brazil’s democracy. The Supreme Court’s forceful acts reached their apogee on Nov. 14 when Justice Alexandre de Moraes, in his role as elections chief, quickly declared the challenger, Luiz Inacio Lula da Silva, the legitimate winner of the 2022 presidential elections.
The court moved aggressively because Brazil’s incumbent president, Jair Bolsonaro, had acted like a veritable would-be dictator, threatening to seize power if he lost reelection, attacking the integrity of the election process, and embracing conspiracy theories about Brazil’s institutions. Bolsonaro went as far as to openly pine for the return of the military dictatorships that governed Brazil in the 1970s and 1980s. But he apparently did not realize that Brazil’s judiciary had been empowered to oppose precisely that sort of attack on democracy.
In a historical sense, it looks like Brazil’s judiciary has successfully employed the latest tools in a long tradition of militant democracies around the world. At the heart of democracy is a paradoxical problem: Democratic institutions must tolerate and protect the rights of authoritarian movements, even when their explicit goal is to destroy democracy. In Karl Popper’s 1945 book entitled “The Open Society and Its Enemies,” he recognizes that the ultimate contradiction in a democracy is that a popular majority could choose an authoritarian government. But after Europe’s experience with fascist dictatorships and World War II, German reformers embraced the idea that democratic institutions should actively oppose and even defuse authoritarian movements. Scholars like Karl Loewenstein and Popper defended the idea that a democracy must “fight fire with fire” and be “prepared to defend a tolerant society against the onslaught of the intolerant.” Drawing on their insights, Germany’s constitution made the country’s democratic character unamendable, gave judges the power to disqualify neo-Nazi political parties, and placed restrictions on anti-democratic speech. For obvious reasons, Loewenstein likened these strategies to those of a “militant democracy.”
Despite the original appeal of a militant democracy, the concept fell out of vogue in the past few decades, especially because it seemed to be an oxymoron. Most damningly, Latin America seemed to lack any actual examples of a powerful judiciary standing in the way of authoritarian movements. Venezuela’s Supreme Court famously yielded to Hugo Chavez’s earliest authoritarian moves. Bolivia’s judiciary made it easier for the government to eliminate presidential term limits. Peru’s judiciary could not stop Alberto Fujimori’s self-coup. And last year, El Salvador’s judges had to retire under pressure from the continent’s most recent dictator, Nayib Bukele.
The only example of a judiciary’s successful intervention against authoritarianism in Latin America has been Colombia. In 2010, the Colombian Constitutional Court invalidated President Alvaro Uribe’s attempt to run for a third term, holding that presidential term limits were fundamental parts of the country’s democratic structure and were, therefore, unamendable.
It is thus surprising and, for now, welcome news that Brazil’s judiciary has decided to fight against authoritarianism and to protect democracy. And it was not an easy path to get there. In order to stall authoritarian movements, judiciaries need to enjoy a high degree of independence and legitimacy. This is especially true when the authoritarian movement is led by a sitting president, like Bolsonaro. Judges’ decisions must be respected not only by society but also by the military.
Well, it appears that Brazil’s judiciary, or at least some of its justices, have reached the point where they can act as militant democrats. Those justices have modernized the concept of a militant democracy by regulating the political process in a way that ensures, or attempts to protect, democratic outcomes.
Brazilian justices did not reach this point lightly or without difficulty. Attacks on courts and the country’s democracy have recently grown out of control. Just in the past three years, an “explosive artifact was thrown in front of the house of a Supreme Court Justice,” justices have faced ghoulish calls to let them “rape and kill the daughters of the Supreme Court’s Justices,” and another critic mused: “How much does it cost to shoot at the point-blank range each Justice?” The sitting attorney general—a Bolsonaro ally—refused to investigate these and other attacks.
It was only in response to this prosecutorial inaction that the Supreme Court expanded its own power to conduct investigations in defense of the rule of law in June 2020. Justice Edson Fachin explicitly referred to Loewenstein’s concept of “militant democracy” to justify the court’s action. And Justice Moraes noted then that “[t]here is no democracy without an independent Judiciary, and there is no independent Judiciary without haughty and safe judges.”
With that said, the risks of this kind of aggressive judicial action are enormous. Giving any institution this sort of power eventually provokes authoritarian co-optation and takeover of those institutions. Work by Tom Ginsburg and others shows that authoritarian movements often employ judiciaries to expand their power. For good reason, then, many observers are worried. We do not know if this was a one-off emergency or whether judges will abuse this power going forward. There is always a risk that autocrats may use this judicial authority in their favor.
Still, in Brazil’s case, it appears that the risks of inaction are greater than the risks of an overly aggressive judiciary. Once authoritarian presidents start a second term in office, they often become nearly impossible to dislodge, as was the case with Hugo Chavez, Viktor Orbán, and Recep Tayyip Erdoğan, among many others. Bolsonaro easily could have joined this list.
As the world continues to face democratic regression, democracies will attempt to find new methods to fight authoritarian fire with fire. The question now is whether Brazil will lead this shift or, instead, whether we’ll look back on this as another step on the way to greater autocratic consolidation.