The Supreme & Supremo Courts, Colltales

Citizens United, the U.S. Supreme Court’s 2010 ruling that political spending is a form of protected free speech, has not only flooded American politics with corporate money, but it’s also assigned the judiciary with a clear ideological bias.
Similarly, the same branch of government has been given an oversized role in Brazil’s current political crisis. The difficult circumstances trapping the presidents of both countries are matched only by two painfully self-serving legislative classes.
While President Obama’s leaves office within a year, President Dilma Rousseff may be forced out even before that. Such limits, along with inefficient congresses, grant legal courts in both sides of the Equator a unique, and extra, charge of power.
To their constitutional role of interpreting the law, judges are being asked to reflect society’s rifts too, as exemplified by recent decisions split along partisan lines. Developments in both countries have only highlighted this new political reality.
While U.S. Justice Antonin Scalia’s death has added a new twist to an already disturbing presidential race, in Brazil the fate of President Dilma Rousseff and her predecessor Luis Inácio Lula da Silva may rest solely in Justice Gilmar Mendes’ hands.
The first, immediate impact of Citizens United was, obviously, financial: at this point, the cost of the campaign is estimated to be already in the billions, but no one can determine exactly how these staggering funds are being channeled to candidates.
But a more pervasive effect of that overextended role may be at play even before a new president term starts. As a new judge is

urgently needed to restore the U.S. Supreme Court’s odd number of justices, a condition for it to reach decisions by vote majority, it’s already clear that ideological orientation, more than experience at the bench, will be the determining factor for the choice.
President Obama has done his constitutional duty by picking moderate judge Merrick Garland as the nominee. By the Republican majority in Congress is already set not to vet anyone for the job before 2017, ideally under a Republican president.
While it’s likely that the impasse will not be resolved by the November elections, it’ll certainly influence it politically, all along and beyond. Even though it’s impossible to foresee how a nominee will weight on Supreme Court decisions once there, his (or hers?) sponsors will make sure that their political interests will be met and served well on future rulings.
It’s been said that the court presided by Chief Justice John P. Roberts has reached some historical decisions, not always reflecting a conservative bias, such as the Same-Sex Marriage ruling, for instance. Citizens United, however, followed a strictly partisan approach, as it was originated by a lobby group’s appeal to air a critical advertising film against Hillary Rodham Clinton.
The 5-4 decision effectively opened the gates of the American electoral process to opaque corporate money (and of unions, but they no longer hold the sway over voters as they did in the past), and cheapened the value of individual contributions. Until, and if, it may be overcome, the Jan 2010 ruling remains the single, most influential factor in the U.S. electoral process.
In Brazil, the first decade of the new century saw unprecedented economic growth and optimism, out of ruling Worker’s Party’s daft policies, and a charismatic President Lula. But, behind the scenes, something way more malodorous was also at play.
Despite successful social programs, which lifted millions of Brazilians out of extreme poverty, PT became synonymous of scandals and corruption schemes, undermining its public moral stand. As successive probes came on knocking on Brasília’s Palácio do Planalto, the opposition, led by the Social Democrats of PSDB, saw blood in the water and seized the momentum.
By the way, in terms of Brazil’s sad tradition of political scandals, the PSDB is no different than PT. It’s also been caught in serious misconduct practices, including when it elected one of its own, Fernando Henrique Cardoso, as president. But in comparison, it’s done a better job keeping its members away from the headlines, with much help from a sympathetic media.
The movement that’s now seeking to remove Rousseff from office found its hero in federal judge Sergio Moro. He’s been leading an investigation into a huge kickback scheme involving the government and a few corporations, named Operação Lava Jato (which Wikipedia poorly coined as Operation Car Wash), and even managed to send some big corporate wigs to jail.
That’s the probe that caught Rousseff at the board of state-run giant Petrobras, when it conducted a series of disastrous investments and played flush fund for the Lula administration. One thing led to another, and suddenly Brazil’s most popular politician faced the sobering prospect of having his shiny biography rewritten as another Banana Republic corrupt leader.
Moro, though, perhaps tripping over too much popularity, lost the restrain expected from a judge in charge of such a high profile case and reprehensibly leaked to an already biased media, a secretly recorded private talk between Lula and Rousseff.
Despite no bombshell revealed on the tapping, it fueled last week’s massive rallies seeking the president’s impeachment and a possible jail term for her predecessor and mentor. When PT reacted with a questionable maneuver, attempting to give Lula a Chief of Staff position, which would have insulated him from the probe, along came Supremo Tribunal Federal Minister Mendes.
President of Brazil’s Superior Electoral Court, Mendes’ been at odds with Rousseff and the PT’s 12-year rule since at least 2009. And, just like Moro, he isn’t one to hold in check his partisan sympathies, both in private and on social media.
Interestingly, he was on the losing side of the Supremo’s 8-3 ruling last year, preventing corporations from contributing to electoral campaigns. But now, he’s in a position to expedite the process to remove the reelected president from office.
That brings us full circle. Suddenly, the judiciary branch of both Brazilian and U.S. governments has enhanced, and some say, undue, influence in the electoral process of two countries with a combined voter universe of almost half a billion people.
By any measure, this is definitely not what the American Founding Fathers had envisioned, when they came up with their clever system of checks and balances. And for a young democracy such as Brazil’s, it’s a downright risky situation.
Whereas in an ideal word, there would be little objection to judges doing double, er, triple duty, legislating, interpreting, and executing what would be, in essence, the interest of the majority, there are considerable advantages to a multiple system.
We won’t skim over the structural differences between the American and Brazilian governments in order to prove a point. But, just as the verbiage lawyers and jurists like so much, form may bury substance, if one loses sight of what’s at stake. In other words, there’s no need to go to law school to identify what’s common sense and what seems to be an aberration.
President Obama will serve democracy well by forcefully ushering the ninth justice to the Supreme Court, and congress, which has stood immobile on so many meaningful issues, must do its job. The same way, we wish almost against hope that cooler minds will prevail in Brazil, specially of those in charge to interpret the constitution and the rule of law. Both countries deserve it.
A steady court nomination process in the U.S. may counter some of the damage done by Citizens United. A show of maturity by Brazil’s highest court may strengthen its democracy by moving the nation forward. Have a great Spring. WC

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