Flávio Bolsonaro has already calculated how much he could change Brazil's Supreme Court. The legal conservative could regularly reappoint four judges of the Supremo Tribunal Federal (STF) in a four-year term. But he obviously doesn't want to be satisfied with that. “It will not be four, but five, because Alexandre de Moraes no longer meets the requirements to remain a judge of the STF,” the presidential candidate told supporters in mid-September. Maybe there would even be six, he added: “Because Flávio Dino no longer has any requirements to stay there either.”
For many Bolsonaro supporters, Judge Alexandre de Moraes has been the central figure in the conflict with the Supreme Court for years. The dispute goes back much further than the trial against Flávio's father Jair Bolsonaro. In 2019, Moraes took over the so-called fake news investigations as a reporter. They were originally intended to investigate threats and attacks against the court, but later also included people close to Bolsonaro. She was investigated for, among other things, disinformation and hate speech.
See F.A.Z. articles more often in your search results
F.A.Z. prefer on Google
In 2022, Moraes was president of the Supreme Electoral Court (TSE) and thus the top election judge - including during the duel between Jair Bolsonaro and current President Luiz Inácio Lula da Silva. He later became a rapporteur in the criminal case in which former President Bolsonaro was charged and ultimately convicted of the attempted coup.
Accusation of partiality
Other decisions by the STF are also part of the history. In 2021, Judge Edson Fachin overturned the corruption proceedings against Lula because the regional federal court did not have jurisdiction. The plenary session confirmed the decision with eight votes to three. In a separate procedure, the STF also declared the responsible judge to be biased. Lula, who had already been released from prison in 2019, received his political rights back and was able to stand for election again in 2022.
For the Bolsonarists, this decision also became evidence of their thesis that the STF enabled Lula's return to power and was therefore not neutral.
The old conflict also becomes topical through the affair surrounding the private bank Banco Master. The investigation into the network of relationships between former banker Daniel Vorcaro has revealed contacts in the highest levels of Brazilian politics and justice and at the same time triggered an open dispute within the STF. The focus is once again on Moraes, whose wife had a lucrative consulting contract with Banco Master.
Flávio Bolsonaro is using the crisis to reiterate his call for a restructuring of the Supreme Court. At the same time, he himself, people from his political environment and other judges are also mentioned in the investigations in connection with Vorcaro. The scandal therefore extends beyond a single political camp.
The Senate has it in its hands
Nevertheless, the revelations surrounding Moraes are grist for Bolsonaro's mill. “Whoever votes for Lula, votes for Alexandre de Moraes,” he said at a rally in São Paulo in early September. However, Moraes’ appointment is not due to Lula. At the same time, Bolsonaro is trying not to direct his attack against the court as an institution. “We will protect the STF from Alexandre de Moraes,” he said a few days later. The court is not Alexandre de Moraes.
As president, Bolsonaro would not be able to decide Moraes' future himself. Only the Senate can do that. This Sunday, in the shadow of the duel for the presidency between Lula and Bolsonaro, which will probably only be decided in a runoff in three weeks, there will also be an election that will help decide the institutional balance of power in the coming years.
54 of the 81 seats in the Senate will be re-allocated - two in each state and in the federal district. The constitution expressly assigns to the Senate the task of indicting and judging STF judges for so-called accountability offenses. A two-thirds majority, or 54 votes, is required for final impeachment.
An unprecedented step
A Supreme Court judge in Brazil has never been removed from office in this way. However, Bolsonaro's supporters have been demanding this for years. In 2021, Jair Bolsonaro himself submitted a motion to remove Moraes as president. However, the Senate President at the time, who decides whether to open proceedings, did not take up the request.
Flávio Bolsonaro has now taken over the demand and extended it to Judge Flávio Dino. For his calculations to work, he would not only have to win the presidency, but also have a two-thirds majority in the Senate behind him - one that would be willing to take a step unprecedented in Brazilian history.
The Senate has another lever over the STF: Each judge is proposed by the President, but must then be confirmed by an absolute majority of senators. Lula only found out how effective this veto right can be in April. For the first time in 132 years, the Senate rejected a presidential candidate. 42 senators voted against Jorge Messias, nominated by Lula, and only 34 voted for him.
One of the eleven seats in the STF remains vacant. In addition, three more judges will retire due to age during the coming term. Flávio Bolsonaro therefore expects four regular new appointments. If Moraes and Dino were also removed, he would get the six he mentioned.
Will Lula go from six to eight judges?
Lula's re-election would also have a significant impact on the future composition of the court. Of the ten current judges, six were appointed by himself or by his party colleague Dilma Rousseff, who ruled Brazil from 2011 until her dismissal in 2016.
If Lula is re-elected and can still fill all four vacant seats, eight of the STF's eleven judges could end up being nominated by governments of the PT workers' party. However, Jorge Messias' rejection showed that Lula could face considerable resistance from the Senate.
