Guardians of the Democracy? Evaluating New Judicial Roles in Democratic Brazil

• In Event: Making Democracy Work

Abstract

In the last few years political scientists and citizens have wondered about whether the democracies in which they lived were in danger. This has been true in the United States, Brazil, South Korea, Israel, Hungary, and Poland, amongst other places. In many of these cases, the Supreme Court has received tremendous attention for the role that it may play in overseeing executive aggrandizement to protect or weaken democracy. Since patterns of democracy erosion have become more prevalent across the globe, scholars have found a long run effect of judicial constraints, a form of horizontal accountability, in increasing the likelihood of democracy resilience. And yet, while these approaches shed light on the consequential effect of judicial institutions, they only offer insights about average effects of judicial power on preventing democracy subversion by incumbents. As such, the causal relationship between judicial power and democracy resilience remains under-theorized. Indeed, there is variation across judiciaries in terms of just how proactive jurisdictions are vis a vis populist control. It is not clear why some judges and prosecutors deliberately initiate and/or respond assertively to populist aggrandizement. I theorize that evaluating how role conceptions have change and compelled jurists to utilize their institutional power over me is fundamental, particularly because previous scholars have focused solely on the importance of the formal institutionalization of judicial independence after democratization which, isolated from informal factors, obscures the consequences of accountability processes in new democracies. In sum, then, I will examine the case of Brazil and trace the historical trajectory of its judicial power. I posit that ideas that jurists and other accountability agents (prosecutors, judges, and lawyers) have about their judicial roles have shifted under different conditions to render a more proactive form of accountability. Specifically, I hypothesize that because Brazil’s institutions received joint judicial reforms of their prosecutorial and constitutional bodies, they developed more autonomy to check the executive's power following episodes of political scandal than those who do not. This is expressed in the way the judges talk about democracy itself and the degree to which they are willing to personalize their symbolic role in society.

Author

• Mishella (Mishi) Romo Rivas, Princeton University