The president of the STF (Supreme Federal Court), minister Luiz Fux, has faced resistance to implement goals set when taking office. Defeats at Lava Jato and brakes on the economic agenda illustrate the difficulties of its management.
The magistrate took office at the head of the STF in September 2020 and will remain in office until the same month in 2022. After a little more than a year, Fux accumulates frustrations.
There was, for example, the promise of limiting the force of monocratic (individual) decisions, preventing the weakening of the largest anti-corruption operation in the country’s history —the Lava Jato— and reinforcing the STF’s liberal bias in the economy.
In a statement, the Supreme Court’s office said that Fux commands the court “at the height of the Covid-19 pandemic” and that “a large part of the administrative effort was aimed at structuring remote work in the court”.
During the pandemic, the court did not stop, but the president’s plans are stuck.
The change in the court’s internal regulations, for example, to determine the mandatory remittance of monocratic decisions to the plenary stalled. There is no date for implementation yet.
Fux said on several occasions that the measure would represent the “reinstitutionalization” of the STF, which would always speak collectively and would no longer be divided into 11 islands — the number of court ministers.
Last year there were more than 1,700 monocratic decisions. In the new model, they would automatically be submitted to the court as a whole, for seal or rejection.
Most ministers are in favor of the change, but the president of the court has yet to reach a consensus with his colleagues on specific points in the proposal.
One of the obstacles was presented by Gilmar Mendes, who demanded a transition that would lead the STF to judge within six months all the monocratic decisions that are already in force. Gilmar’s idea was to force Fux to take to the floor his decision that suspended the implementation of the judge of guarantees.
The president scheduled the issue for the end of this month, but even so, he was unable to form a consensus on the change of rules.
Behind the scenes, ministers say Fux is still reaping the rewards of changing his position at the end of last year’s judgment on re-election for the House and Senate presidencies.
Court members say that the minister did not fulfill the promise made at the time, in private conversations, that he would vote in favor of the possibility of Rodrigo Maia (no party-RJ) and Davi Alcolumbre (DEM-AP) being reappointed to the command of the Houses Legislative.
In this scenario of mistrust, the idea of shielding the Lava Jato was not successful either. The operation accumulates setbacks and important decisions to fight corruption are postponed in court.
Not even a major victory that Fux won as soon as he took command of the courthouse has had the expected effect. A month after taking office, the minister articulated with colleagues and managed to change the regiment to remove criminal actions and ongoing inquiries at the Supreme Court from the classes.
The objective was to migrate from the Second Panel to the plenary processes related to Lava Jato, which had been suffering serial defeats in the collegiate. The change, however, did not make the STF stop the wave of failures in the operation.
In addition to the fact that some actions remained in the class, the congestion of the plenary and the lack of processes released to go to trial made it difficult to form a scenario with lavajatistas victories.
The minister’s interlocutors claim that the change was important to avoid defeats that would probably have been imposed on the class. They also regret the fact that Fux, one of the main defenders of Lava Jato in the Supreme Court, has taken over the court in a scenario where the operation is at its worst.
People close to him also cite the fact that Fux is president of the STF at a time when the powers of the presidency are depleted.
With the recent expansion of the virtual plenary, the rapporteurs can bring cases to trial without depending on the president, who, until then, had the power to choose which actions the court would judge.
In a note, the Supreme Court’s office mentioned and praised the virtual trials of quick duration, which lead to the discussion by the collegiate of sensitive issues that, before, were resolved with individual decisions. “One of the main marks of the Fux administration has been the demonocratization of the court,” he said.
In the view of people close to Fux, the inauguration of André Mendonça, nominated by President Jair Bolsonaro (non-party) for Marco Aurélio’s vacancy, can help him implement plans he had when he took over the Supreme Court, especially in cases related to combating corruption.
In relevant judgments on the subject, the plenary usually makes decisions with a tight scorecard. Therefore, the arrival of Mendonça, who has a history of proximity to Lava Jato agendas, could help Fux win a majority in the banners he considers important.
This can occur, for example, in relation to the debate on imprisonment after a second instance decision. The STF ruled out this possibility by 6-5 in 2019, and, if Mendonça takes a favorable position, the score could be reversed.
Bolsonaro’s chosen, however, has found it difficult to get his name approved by the Senate.
The support that Fux has given him, by the way, has been viewed with fear by congressmen, who fear that the arrival of Mendonça represents the victory of agendas criticized by most of the political world.
In the economic sphere, at the end of October, Fux faced an important defeat in a judgment in which he intended to signal the financial market.
At the time, to the minister’s surprise and with his vote against, the court overturned one of the pillars of the Michel Temer government’s labor reform (MDB).
Fux was betting that most colleagues would maintain the change in the legislation that authorized the collection of fees from workers who lose legal proceedings, including those considered to be low-sufficient (poorer).
By 6 to 4, however, the court overturned the portion of the reform, which was widely supported by entities representing the private sector on the grounds that it would reduce the number of lawsuits against companies in the Labor Court.
This result was interpreted internally as an indication of the difficulty that the minister has encountered in forming a majority in relation to the agendas he defends.
Faced with the defeats, Fux’s interlocutors consider that the minister had the challenge of presiding over the STF in the pandemic. They also highlight the expansion of the virtual plenary, which provides quick answers and increases legal certainty.
People close to the president of the court also mentioned the creation of observatories in the CNJ (National Council of Justice), a body presided over by the head of the Supreme Court, which expanded the relationship between the judiciary and civil society.
In a statement, the court’s advisors said that “one of the highlights of the administration is aimed at enhancing the dialogue between the STF, universities and civil society, especially given the fact that Minister Fux is a professor and career judge” .
To support the argument, the note cited partnerships with leading universities around the world, cooperation with the UN (United Nations), in addition to having established the “first academic journal in the history of the court”.
STF note sent to Folha de S.Paulo
Minister Luiz Fux assumed the presidency of the Court at the height of the Covid-19 pandemic, and a large part of the administrative effort was aimed at structuring the remote work in the court, which had already gone on for a few months and would last for many more. All customer service was adapted and streamlined; the digitization of processes was completed (today we have more than 99.6% of the files digitized); filter mechanisms were expanded so that fewer resources reached the Supreme Court, through administrative and technological integration with other courts in the country; and improved computerized internal work systems.
Due to the pandemic, the improvement of the governance of the Supreme Court was extremely necessary for the maintenance of effective jurisdictional work, that is, for the responses to society to be given in the most rapid manner. Currently, all jurisdictional services are offered online, making the STF the world’s first 100% digital Constitutional Court.
In addition, the Court’s internationalization initiatives bore fruit: Covid’s crisis jurisprudence was exported around the world and today the Brazilian Supreme Court’s judgments are an example in other countries.
One of the highlights of the administration is aimed at enhancing the dialogue between the STF, universities and civil society, especially given the fact that Minister Fux is a professor and career judge. Exchanges were carried out with national and foreign students, academic partnerships with leading centers such as the University of Oxford, and cooperation with the UN through the institutionalization of the 2030 Agenda in the STF.
One of the main marks of Fux management has been the demonocratization of the Court. Extraordinary virtual sessions, of short duration, have encouraged collegiate decisions. This increases the institutionalization of decisions and strengthens the institutionality of the STF. Furthermore, the virtual plenary has proven to be an efficient way for the Supreme Court to provide the answers that society needs. In turn, the Regimental Amendment that returned to the Plenary of the Court the judgment of criminal actions and inquiries also proved to be important in this regard, even though many cases are still in the investigation stage and are awaiting a request for an agenda by the rapporteurs. However, when there is a statement about criminal actions, the collegiate will respond, which gives the institution more strength. All of these are surgical movements, with great effectiveness in the medium term.