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Deficit of deliberation

Internal rules and practices can negatively affect the quality and quantity of debate by Supreme Court Justices

STF_078-081_STF_243-1Nelson ProvaziIn representative democracies, the legitimacy of elected office is constitutionally assured by the trust the population places in its representatives, as manifested by voting. However, members of the judicial branch are never elected; in the case of the Federal Supreme Court, they are appointed by the president and approved by the Senate. The legitimacy of the court that renders the most important decisions in the judicial system is expected to come from the wisdom of its 11 justices. “One of the sources of legitimacy is the quality of the court’s deliberations,” says Virgílio Afonso da Silva, a professor at the University of São Paulo (USP) Law School. With well-grounded decisions that are centralized among a few, in its principal role as the guardian of the Constitution, the STF is responsible for providing the necessary scrutiny of the numerous laws enacted by Congress, which are often confusing and contradictory.

The problem lies in knowing whether the deliberations of the Supreme Court are, in fact, the best possible. This was the motivation behind the study entitled, “Deliberation by the STF,” which Silva began in 2011, and which is now in its final phase. The objective of the research interviews was to understand how the Supreme Court Justices view the process of deliberation in which they participate, since, according to Silva, “each new justice is compelled to follow the procedure dictated by tradition and the Court’s internal rules.” Silva interviewed 17 current and former justices of the STF, ensuring them that the information would be used without identifying them, in order to “allow the justices to feel at ease to present their opinions,” and thereby portray the Court’s decision-making process. The study concluded that the STF’s internal rules and practices are detrimental to the quality of the deliberations.

It is not a matter of defending a single decision-making process. “Sessions can be public or reserved, the Court can allow or prohibit minority opinions, produce single decisions or present the opinions of all the members, have freedom in the choice of cases or not,” says Silva. Professor Diego Werneck Arguelhes, of the Fundação Getulio Vargas Law School in Rio de Janeiro (FGV-RJ), notes that deliberations of the German Supreme Court, for example, are always secret; this rule might not be accepted if it were to be adopted in Brazil. “Nevertheless, the public trusts those people since they defend ideas that have been settled over the course of decades of work,” he affirms. In the German constitutional court, decisions are only pronounced by the court president, and are almost always presented as consensual. “Consensus is seen as a sign that the decision is the best attempt to address the question, reached by well-intentioned specialists.”

The difference between the decision-making processes in the legislative and judicial branches can be seen more clearly in regard to this point. While lawmakers were chosen to express certain interests, since they were elected to represent segments of the population, according to Silva the justices on the STF have the obligation to interpret and apply the Constitution in accordance with the conviction that it should be the expression of public reason. This concept was created by American legal philosopher John Rawls (1921-2002), and it refers to the consensus surrounding a concept of justice that is shared by society as a whole.

Deliberation of good quality as a group requires the justices to present and listen to arguments so that the group can reach a common decision, and not just a decision of the majority of its members. In the case of the STF, several factors have negatively affected the quality of the deliberations. These problems begin with the rapporteur, a topic analyzed by Silva in an article published in 2015 in Revista Estudos Institucionais, a journal affiliated with the Federal University of Rio de Janeiro National School of Law. In the opinion of the majority of the justices interviewed by this author, the rapporteur plays a decisive role in proceedings at the STF, since it is he who “sets the limits of the entire debate.”

Some justices differentiate the role of the rapporteur “in run-of-the-mill cases” from those “that attract public opinion.” One of them explained that when the subject does not draw a lot of attention, the rapporteur plays a decisive role, since the others tend to follow his opinion; however, when the matter is controversial, the rapporteur’s opinion is just “another opinion,” since each of the other justices brings his own written opinion with him.  As Silva emphasized in another article, published in the International Journal of Constitutional Law, this is a factor that is quite harmful to the process of deliberation. Debate tends to play an irrelevant role, “insofar as each member of the court prepares to vote as if he were the rapporteur,” in the words of one of the justices.

According to Silva, this occurs due to a peculiar practice at the STF: the rapporteur keeps his opinion secret until the time of the session. He discloses the report with the information on the case, but not his arguments. Since the other justices do not know the rapporteur’s position, they need to prepare their opinions “from scratch” in controversial cases. One of the justices interviewed declared that “if the rapporteur would send his opinion ahead, this would clearly save time.” If a justice agreed with the rapporteur, all he would have to do would be to follow his opinion, which would free up time for other cases. This would also allow for dialogue with those justices holding divergent opinions, since the opposing arguments would come from common ground. “What we have today is the sum of 11 opinions, and not decisions resulting from in-depth discussions among the justices,” concludes Oscar Vilhena Vieira, director of the FGV Law School in São Paulo.

“Although a good number of the justices would like the rapporteur to disclose his opinion, some are still wary of this practice,” affirms Silva. “There are justices who do not want to run the risk of disclosing their arguments ahead of time, to prevent other justices from preparing stronger counter-arguments.” But previously prepared opinions are defended on grounds that go beyond practicality. “It seems to me that it is a good idea for the rapporteur justice to bring his written opinion; it shows that he thoroughly studied the legal arguments presented in the appeal,” Carlos Velloso, former Justice on the STF between 1990 and 2006, declared to Pesquisa FAPESP. “The ideal situation in more complex cases would be to hold a reserved session to debate the matter, as the U.S. Supreme Court does.”

Other justices at the STF recognize that the lack of prior debate is one of the causes of the high number of dissenting opinions. Some have noted that this has not always been the case. In the past, voting sessions were preceded by so-called advisory sessions in which cases were previously presented, which allowed the justices to hear each other’s’ opinions. This helped reduce dissent. But these sessions were abandoned after the presidency of Marco Aurélio Mello (2001-2003), appointed to the Court in June 1990, who did not like them.

STFHigh degree of exposure
Another factor that apparently affects judgments is the high degree of exposure to which justices are subjected. Since 2002 STF sessions have been broadcast live by the station TV Justiça, which directly exposes the justices to the public. According to Silva, this is why the members of the Supreme Court seem to be more concerned with opinions outside the court than they are with their colleagues’ arguments. They are worried about their public reputations, which are based to a large extent on their performance as orators.

“Justices are people, not angels, and vanity is part of human nature,” says Velloso. “TV broadcasting has trivialized the judgments and the Court itself.” Conrado Hübner Mendes, a professor at the USP Law School, considers the major increase in public exposure to be a serious problem. “The quality of the deliberations has fallen sharply and this has exposed the Court to the cacophony of the individual opinions of the justices regarding any public matter they are questioned about by the press.”

Virgílio Afonso da Silva believes this degree of exposure has accentuated individualism among the justices, negatively affecting their performance as a collegiate body. If there were less publicity, it would be reasonable to assume that the justices would feel more at ease to discuss the merits of the arguments, and possibly change their opinions. However, in front of the TV cameras, willingness to accept opposing arguments falls considerably, especially in the most controversial cases.

Would it be possible to improve the decision-making process at the STF? “A few minor alterations would make an enormous difference,” says Silva. “Debating before recording votes is a possibility under the internal rules, but it is seldom done. The justices claim that the problem lies in the workload, which really is large, but I think the STF could choose the most important cases and conduct preliminary debates.”

For a variety of reasons, including the increase in attributions assigned to the STF by the 1988 Constitution, the number of cases that reach the Court is enormous. In 2014, there were 78,110 new cases. “The Supreme Court still hasn’t understood that it should only judge matters that are of interest to millions of people; this is what the Constitution wants,” Velloso opines. He adds that one of the Court’s attributions, to judge the members of the executive branch, the Congress and the attorney-general of the Republic, “has transformed the Supreme Court into a criminal court.”

For Oscar Vilhena Vieira, the way to improve the decision-making process would be to reduce the number of matters over which the STF has jurisdiction (see chart). “The accumulation of tasks has been handled through a growing number of monocratic decisions,” notes Vilhena, referring to those in which a single judge renders a decision. “Given that this is a court whose decisions are not subject to appeal, and therefore, is the court that runs the risk of making a mistake at the final level, it is important that the majority of its judgments be made collectively.”

The excess workload has its origin, at least in part, in the habitual procedures followed by the STF, argues Diego Werneck Arguelhes. “The Supreme Court has always refused to give up some of its jurisdiction,” he says. “Today, some justices are beginning to accept the idea that it will be necessary to close some doors. What a constitutional court should be doing is discussing arguments, and not being the general fixer of injustices in the Republic.” In his opinion, the most serious problem with the STF is the inconsistency in its own procedures, caused by a “lack of initiative in systemizing rules and putting them into practice,” and as a result, rapporteurs must decide them on a case-by-case basis. For Arguelhes, there is a lack of transparency, for example, in the way the docket is chosen. “Any proposal for change runs up against two basic problems: exacerbated individual powers and the absence of clear instruments to control the conduct of the Court’s members,” he affirms.

Deliberation practices by the Federal Supreme Court (nº 2011/01066-0); Grant Mechanism Regular Research Grant; Principal Investigator Virgílio Afonso da Silva (USP Law School); Investment R$ 20,414.80.

Scientific articles
SILVA, V. A. Um voto qualquer? O papel do ministro relator na deliberação no Supremo Tribunal Federal. Revista Estudos Institucionais. V. 1, No.1, 2015.
SILVA, V. A. Deciding without deliberating. International Journal of Constitutional Law. V. 11, No. 3, 2013.