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Judiciary undergoing transformation

Opposing the trend of the 1990s, study identifies fewer women and working class among Brazilian judges

Jairo Rodrigues

In the last 20 years, the Brazilian judiciary has aged and seen a reduction in the presence of women and members of lower socioeconomic groups within this public office. The study, which was carried out in 2018, is titled “Who we are – the judiciary we want.” Carried out by the Association of Brazilian Magistrates (AMB), the association also reveals that, while judges previously showed their commitment to the search for democratic access to the courts, today they are more concerned about institutional themes and opportunities for their own career growth. Today, there are 18,168 judges working in Brazil—3,785 participated in the research.

The results of the study updated the profile of Brazilian judges, which was previously mapped out in 1996 through an investigation conducted by AMB in partnership with the University Institute of Research of Rio de Janeiro (IUPERJ)—today called the Institute of Social and Political Studies at the University of Rio de Janeiro (IESP-UERJ). “As the background of the two studies, the political scene was drastically changed in this period of time, reverberating in the results of the work,” notes sociologist Luiz Jorge Werneck Vianna from the Department of Social Sciences at the Pontifical Catholic University of Rio de Janeiro (PUC-RJ) and coordinator of both investigations.

Vianna observes that the first study reflected the moment in which the Judiciary was involved in the creation of the Federal Constitution. “At this time, the Judiciary defined its key role in the country’s institutional relations,” he says. The recently published study was developed just before the general elections of 2018. “Now the research reflects a time in which the Judiciary has adopted a defensive position. Having to defend itself on accusations of activism, it began to focus its work on matters of democratic procedure and abandon its concern about social issues, which had been significant for 20 years,” relates Vianna. The so-called procedural topics refer to democratic processes, such as the ways in which representatives are elected, how political parties and elections are organized, the definition of who can vote and be a candidate for public office, how public funds are used, among others.

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Also a participant of both studies, sociologist Maria Alice Rezende de Carvalho, from the Department of Social Sciences at PUC-RJ, remembers that, after the enactment of the Constitution in 1988, there was a movement to affirm the new individual and collective rights, leading to intensified legal disputes throughout the country. The Judiciary got nearer to social causes and the structure of legal institutions was broadened with the creation of the Special Criminal and Civil Courts, which focused on new needs.

“These courts began to serve causes which, to that point, were considered of lesser importance,” relates the researcher. In that scenario, the first edition of the study identified that the judges were focused on the issue of social needs and driven to democratize access to the courts.

While women comprise the majority of the Brazilian population, this proportion does not replicate in places of higher power

The researcher even confirms that this trend for Brazilian judges to consider social differences in their trials also reflected the state crisis of social well-being in the 1970s, which triggered a process of deregulation of everyone’s rights and which, in Brazil, relegated to the Judiciary the function of defending the social sectors most affected by the dismantling.

Through a series of questions that assessed how judges think about law and the role of the Judiciary, the study states that magistrates today tend to refuse a more activist role, informs sociologist Marcelo Tadeu Baumann Burgos, of the Postgraduate Program in Social Sciences at PUC-RJ, and also a participant of the studies. The investigation shows that the Brazilian Judiciary has been abandoning the perspective of “guardian of fundamental rights,” and focusing its work on the practices that ensure democratic development of the will of citizens. He outlines that, in the 1990s study, the support of the magistrate stood out with respect to the leading role of the Judiciary in the fight against social inequality. On the contrary, today the issues related to the effectiveness of the justice system and the value of the Judiciary as an arm of the State with regard to the control of public morality, including issues of public safety and fighting corruption.

Regarding changes that occur throughout one’s career, Burgos notes that today judges tend to return to the profession’s internal logic, seeking opportunities to advance within the magistrate, which includes investing in postgraduate courses. According to the study, 78.9% of First Circuit judges and 73.8% of Second Circuit took some kind of course such as this, with higher percentages compared with the study of 1996, when 48% of the First Circuit and 59% of the Second Circuit confirmed taking postgraduate courses.

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Judicial memory
The research also reveals that Brazilian judges are quite likely to make individual decisions: 52% of First Circuit judges confirmed not having considered jurisprudence in their judgements. Even though they recognize that the set of decisions and previous interpretations of the laws made by higher courts is fundamental to the rationalization of judicial activities and optimization of procedural protocol, 55% of the Justices of these tribunals, among those who responded to the study, stated not purposely using jurisprudence when they consider it would jeopardize functional independence.

In a project that assessed the impact of the decisions of the Federal Supreme Court (STF) on the Brazilian Judiciary, Luciana Gross Cunha, of the São Paulo School of Law at the Getulio Vargas Foundation (FGV Law SP), claimed that there are a significant number of decisions of the São Paulo Court of Law that do not follow the Binding Precedents published by the Federal Supreme Court. “With this, in the majority of cases, they create exceptions to decisions that should have already been previously established,” she confirms. According to the researcher, this resistance occurs for various reasons. One is related to the principle of the natural judge, which is safeguarded by the Constitution and guarantees the independence and impartiality of the judge in his/her decisions. Furthermore, the Brazilian judicial system—civil law—gives less importance to previous decisions made by the courts of second instance or higher, functioning with a distinct logic when compared with the system of common law, for example, which is in effect in countries such as the United States. “With this, in Brazil, judicial precedents, or prior decisions, end up having less value,” she explains. Cunha points out that such a characteristic results in similar cases receiving different decisions depending on the judge who is presiding.

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Female presence
The first edition of the AMB study pointed to an increasing case of women entering the magistrate. If this trend identified in the 1990s had continued to grow with the strength it showed back then, today 60% of judges would be women, notes Burgos of PUC-RJ. This is not what happened. The research showed that the periods of highest entry of women into the magistrate was between 1990 and 1999 and between 2000 and 2009, when women represented, respectively, 38% and 41% of total entrants. Between 2010 and 2018, the entry percentage for women fell by about 34%. “The participation of women in law programs is growing, but this trend does not have an equivalent effect in the magistrate such that, since 2010, the entry of women into this profession has dropped significantly,” notes Burgos, remembering that, in order to be understood, this statement relies on studies that analyze all stages of entry to the magistrate.

One of the authors of another study that sought to measure the participation of women in the Federal Courts, judge Gabriela Azevedo, coordinator of the commission Women of the Association of Federal Judges (AJUFE Women Commission), says that the presence of women in this branch of the justice system went from 26% to 32% between 2013 and 2018. “However, the relative proportion of female federal judges who are black in this context remained lower, totaling only 2%,” she points out. In addition to fewer women entering the federal magistrate, they also progress less in their careers, alerts Azevedo. “The proportion of female associate judges is always lower than that of female federal judges. For this reason, we say that there is a glass ceiling in this career,” she notes. Aligned with her statements, the percentage of female associate judges in the Federal Regional Courts (TRF) is, on average, 20.86%, while the Federal Courts of first instance see an average of 32.06% for female participation. “This means that, while women comprise the majority of the Brazilian population, the proportion does not replicate in environments of greater power or visibility,” she notes.

The first female judge in Brazil, Auri Costa Moura (1911–1991), entered the state magistrate of Ceará in 1968. “We think that Moura only got the position as judge because her name was confused with that of a man, in some stages of the public competition,” says sociologist Veridiana Pereira Parahyba Campos, researcher for the Carlos Chagas Foundation (FCC) and one of the authors of the AJUFE study. Campos recalls that the second female judge in Brazil, Thereza Grisólia Tang (1922–2009) of Santa Catarina, only became a magistrate in 1954, 15 years after Moura. “For close to 20 years, she was the only woman to work in the Judiciary of Santa Catarina,” says the researcher.

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Aging of the judiciary
Another rising trend in the 1990s, which has lost strength in the recent landscape, involves the participation of judges in the magistrate that came from lower social economic classes. In the prior study, close to one-third of judges were from lower classes. Today, this proportion is one quarter, informs Burgos. The study also shows that 27% of First Circuit judges have parents who did not complete high school, compared with 54% in the 1996 study. Close to 80% of First Circuit judges call themselves white, and 18% brown or black. Among the Second Circuit judges, the percentage of whites reaches close to 85% and, for blacks and browns, 11%.

Another finding of the study shows that the Judiciary has aged: 31% of First Circuit judges are less than 40 years old, and 31% are 51 years of age or older. Among the Second Circuit judges, almost 45% of respondents claimed to be 61 or older. In the prior study, 51% of judges were under 40 years of age, and 15% were 51 or older. Cunha, of FGV, believes that this fact reflects a reduction, since 2010, in the number of public competitions for entry into the magistrate and is related to a longer tenure in the career. Today, the majority of associate judges in the country is 60 or older.

27% of First Circuit judges who are currently working have parents who did not complete high school

Despite white men still being the majority, Maria Tereza Sadek, of the Department of Political Science at the University of São Paulo (DCP-USP), calls attention to a certain modification in the profile of the magistrate in the last four decades. “Before, almost all judges were men, children of magistrates, or successful lawyers. Women, homosexuals, or even children of foreigners ended up failing the oral exams,” she confirms. According to Sadek, this diversification in the magistrate profile is also present in their theoretical orientations. “There are judges educated in different schools, some more aligned with positivism, while others more sociological,” she illustrates. From the researcher’s perspective, the characteristic explains some of the recent debates at the STF. “Many times, the justices disagree because they have different theoretical assumptions and this also happens in the First Circuit magistrate,” she notes, remembering that, until the 1990s, judges almost only spoke up during proceedings and, for that reason, they were not well known by the population. “Today, the process of the judicialization of politics, which reaches its peak with the corruption cases investigated by Operation Lava Jato (“Car Wash”), and the prominence of the STF involving decisions, such as same-sex marriage, have resulted in the Judiciary being involved in day-to-day issues that drive Brazil,” she concludes.

Project
Ten years of Judicial reform: The practical effects of constitutional appeals and of the general impact on the STF and on the TJSP (nº 15/05589-8) Grant Mechanism Regular Research Grant; Principal Investigator Luciana Gross Cunha (FGV); Investment R$20,639.05.

Study
VIANNA, L. W. et al. Who we are – The Magistrate we want. Association of Brazilian Courts, 2018.

Books
CAMPOS, V. P. P. Processo de feminização da magistratura no brasil: Mecanismos e possibilidades de uma mudança social. Publishing house at the Federal University of Pernambuco (UFPE), 2016.
VIANNA, L. W. et al. Corpo e alma da magistratura brasileira. Editora Revan, 1997.

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