In the 1930s, Europe watched through a haze of perplexity and inertia as Germany built a military structure practically unrivaled in human history. France and England, although threatened by the German war machine, chose the path of passivity and the belief that the worst could be avoided through diplomacy — even as the signs indicated the opposite was true, particularly toward the end of the decade.
The result was the Second World War, one of the saddest chapters in history: countries destroyed, millions of fatalities, and a scenario of devastation much more serious than what Voltaire immortalized in the classic “Poem on the Lisbon Disaster”.
Blame for the onset of the Second Great War often falls on UK Prime Minister Neville Chamberlain. In September 1938, he, along with France and Italy, signed the “Munich Accord,” agreeing to cede part of Czechoslovakia to Germany. While France also signed, Chamberlain shoulders more blame due to his enthusiasm, and the fact that England’s consent proved pivotal.
Chamberlain, a man of many qualities, became a symbol of weakness and his lack of firmness gave rise to the expression “appeasement”, in this context — a political, material, territorial concession that a country makes to another stronger militarily in the hope of avoiding violent conflict. The irony is that soon after the accord was signed, Germany invaded and then annexed Czechoslovakia. And then it repeated these moves in Poland and in France.
Since 1988, Brazil’s highest court of justice, the Federal Supreme Court (STF), has assumed expanded responsibilities, rivaled only, perhaps, by the United States Supreme Court. In 1954, the US Supreme Court ended official racial segregation (Brown v. Board of Education), and in 1973, it legalized abortion (Roe v. Wade), a ruling that endured nearly five decades until June 2022 (Dobbs v. Jackson).
Judicial Review is a prerogative that has been present since our 1891 Constitution, but it has never been wielded on such a comprehensive scale before. Examples like abortion, the rights of public servants to strike, criminalization of homophobia, recognition of same-sex unions, and protection of Indigenous Land stand out as instances of a power previously unexplored by the STF. his authority is reminiscent of historical accounts and reports from the U.S. Supreme Court, extending back over two centuries.
The newly emboldened STF soon began to irk. In 2019, Jair Bolsonaro, a former army captain, took over as President of Brazil. From that pivotal moment onward, the equilibrium among the branches of power was shattered, culminating in relentless attacks on the Court and some of its justices. They found themselves subjected to an unprecedented wave of hostility, incited by the occupant of the federal Executive Branch—a man of few words and abundant profanity.
From 2019 to 2022, the most important court in the country, the one that the Constitution says is its guardian, faced a flurry of threats and attacks.
The STF has been criticized for its actions in recent years, including its use of the Declaratory Action of Constitutionality (ADC) and its denial of standing to some individuals who are otherwise authorized to file a Direct Action of Unconstitutionality (ADI). However, the STF is acting correctly in using its prerogatives to protect Brazilian democracy.
The STF’s actions in the 1990s, when it decided several ADCs based on its own jurisprudence, were not met with widespread criticism. This is because the STF was filling a void left by the lack of regulation by Congress. However, in 2023, some people are now complaining when the STF seeks to remove the threats that still persist against Brazilian democracy, even after the 2022 elections and the January 8, 2023, coup attempt.
These critics should remember the devastating impact that Neville Chamberlain’s omission had on Europe and the world. The STF is aware of history and is acting correctly in using its prerogatives to prevent a similar tragedy from happening in Brazil.
The STF is the guardian of the Brazilian Constitution, and it has a duty to protect the rule of law. The STF’s actions in recent years have been controversial, but they are necessary to ensure that Brazilian democracy remains strong.
João Carlos Souto has been a Professor of Constitutional Law at the Centro Universitário UDF in Brasilia and the President of the United States-Brazil Comparative Law Institute. He holds Masters and Doctoral degrees in Law (PhD), and has served as an Attorney of the National Treasury since 1993. He is also a prominent author and news contributor.
