Judicialized Democracy in Practice: Institutional Guardianship in Brazil

Brazil experiences a form of judicialized democracy in which the political class is increasingly dependent on judicial decisions, and the risk of relapse into dictatorship is fought against through increased control over political dynamics. The influence of Brazilian judicial power on the Brazilian political system, whether positive or negative, and what the potential next steps are  for the protection of democracy,  have been considered. The role the justice system has taken up in Brazil presents both, a potential for the protection of democratic values, as well as a change in the classification of government branches. The main question that needs answering is why a judicialized Brazilian democracy risks losing legitimacy while faced with a lack of political coordination and the over-extension of judicial powers.

The concept of judicialization of politics refers to the growing influence that judicial power may have over the executive and legislative branches due to increasing tensions in the political sphere that force greater responsibility onto the judiciary. That usually happens when trust in the democratic institutions of the state diminishes because of corruption scandals within the political class. For many countries with an authoritarian past, a judicially dominated political space seems to be the only way of sustaining the democratic institutions put in place by the constitution (Vallinder, T., 1994).

Source: Walker, A.P.P. and Friendly, A. (2024)- Brazilian judicial power structure.

An overextension of judicial authority over governance and the political life of citizens will, in the short term, solve issues such as corruption and lack of transparency, but with no effective way of holding the judiciary accountable for its decisions, such a dynamic ultimately raises concerns of democratic legitimacy due to the lack of accountability mechanisms. With citizens feeling unrepresented by unelected individuals who hold judicial power and more, the democratic system meant to be protected loses its credibility.

A normal judicial power, in a democracy, would focus on reacting to specific cases and striking down unconstitutional laws. In a judicialized democracy, the judicial power takes on the role of guardian of democratic institutions. In that context, pre-emptive actions become the norm, and political behaviour and competition get regulated through courts.

In the case of Brazil, the power given to the judiciary by the constitution is a result of the return to democracy after a 21-year-long military dictatorship. From 1964 to 1985, the Brazilian population lived through an autocratic system that persecuted political plurality. In 1988, a new constitution was created with the aim of reforming the entire Brazilian system and implementing as many social democratic policies as possible. Having an underprepared political class and facing an economic crisis, the Brazilian elite needed to make sure that a reversal from democracy to dictatorship or other authoritarian regimes would not be possible. 

In the “Citizen” Constitution, the Supreme Court received less traditional responsibilities that place it in a central role when it comes to protecting democracy. The Brazilian governments are based on coalitions, and political tensions around corruption have forced the Supreme Court to intervene and act as a mediator between political parties (Arantes, R.B., 2005). Former president Bolsonaro’s actions have provided the Supreme Court with the opportunity to extend its influence. Having been found guilty of attempting a coup d’état after his loss in the presidential elections, Bolsonaro has been convicted and sentenced to 27 years in prison. As a result, part of the population has started seeing the Court as one of the main institutions that could protect democracy. Critics, however, argue that the over-involvement of the judiciary in political decision-making for the “protection of democracy” sounds less credible when the very same democratic processes said to be protected cannot take place because of judicial influence. For example, when the judiciary states that the foreign policy of the country is against democratic order and attempts to force a different perspective onto the government, one of the core ideas of democracy, the separation of powers, is clearly being undermined.

Source: Borges, A. (2021). Party Bloc Volatility, 1990–2018 (Vertical axis shows the coefficient of variation of the ideological distance between party blocs over time).

The Supreme Federal Court (STF), according to the Constitution, is meant to protect the democratic order and everything concerning it. It represents a safeguard against the return to dictatorship, and, unlike other systems in which the Supreme Court is supposed to react to the legislature, it is invited by the constitution to arbitrate in cases of political conflict. This becomes highly relevant when the Brazilian party system is taken into consideration. It is extremely fragmented, with the President frequently having to bargain with Congress over very unstable majorities. In practice, this means that, in cases of inability to resolve conflicts within their own ranks, politicians must accept judicial oversight and arbitration. The fragility of the party system, therefore, leads to a high judicialization of politics.

It is worth noting that prosecutors in Brazil have a high degree of autonomy. This constitutional protection aims to protect the country against corruption. By ensuring that the Ministério Público is independent of political pressures and that it can prevent corruption, the lack of accountability becomes a systemic problem.

The Lava Jato Operation is a very good example of how the situation can be mismanaged. The “Car Wash” Operation was the largest corruption case in Brazilian history. Multiple political parties and senior party officials participated in and benefited from a series of misvalued contracts from which they took a cut. Even though former president Luiz Inácio Lula da Silva was allegedly involved and had received a beach house, among other benefits, for his contribution to this corruption case, the STF overturned his conviction based on several facts. It was discovered that prosecutors and case judge, Sergio Moro, had informally cooperated, that Moro had overextended his interpretation of jurisdiction, and that there was suspicion of political motivations aimed at stopping Lula’s candidature. Lula’s conviction was overturned, and no trial was pursued in Brazil, even after the case was sent there by the STF, mostly because of prescription, as most alleged crimes had occurred in the 2000s. This remains one of the most important cases in Brazilian history, both because of the scale of corruption and because of the over-extension the judiciary had over politics (de Sá e Silva, F., 2022; Grangeia, M. et al, 2025).

Source: Statista-Corruption perception index score of Brazil from 2012 to 2024 

Unlike other democracies, Brazil’s electoral system is part of the justice system. It is represented by the Superior Electoral Court (TSE). Its role is not only to manage the voting process but also to regulate campaign conduct. Its members are drawn from the STF and the Superior Court of Justice, making judicial supervision part of the election process. Starting in the 2010s and progressively extending oversight, the TSE began to play a much bigger role in combating disinformation. In most democracies, courts analyse violations after they occur. The TSE instead acts preventively, seeing disinformation as a threat to national security and electoral integrity. Critics argue that an authority composed of unelected and unaccountable individuals that unilaterally decides what constitutes harmful speech raises questions regarding transparency and the willingness to uphold real democratic processes. (Melo, M.A., 2016; Rubio, R. et al., 2023.)

Former president Jair Bolsonaro expressed doubts about the reliability of the electronic voting system. Even without credible evidence, those doubts became very popular before the 2022 presidential elections among a portion of the Brazilian population. As expected, tensions were high during elections, and, after Bolsonaro narrowly lost the elections to Lula, those tensions materialized on January 8, 2023. Bolsonaro’s supporters stormed the Presidential Palace, the National Congress, and the Supreme Federal Court while calling for military intervention and the overturning of the election results. The TSE responded with a much clearer role in supervising political speech, and courts rapidly started investigations into anti-democratic elements, including disinformation content. (Rubio, R. et al., 2023.)

The justice system intervened decisively for the Brazilian democratic order, but, while doing so, it also negatively affected the democratic processes it was trying to protect. It opposed military action by limiting free speech and by invoking the very broad authority the Constitution gave to the STF. Doing so while unelected has caused clear damage to the image of the entire political and judicial system from the perspective of the population. It has clearly alienated a part of the population, especially after the conviction of Bolsonaro to 27 years in prison for the January 8 insurrection. 

Source: World Justice Project

Brazil finds itself at a crossroads. If unelected judges keep trying to maintain the integrity of the democratic system with no visible contribution from the political class, the legitimacy granted to the STF by the Constitution will wane. In a democracy, people need to have proof of representation and rulers who can be held accountable. That is not possible if the judiciary becomes, even temporarily, the first branch of government. If Brazil tries to accept the situation as it is and the courts maintain most of the power, polarization of the population may become ever more present due to growing discontent among citizens. There is a big difference between judicial review and judicial governance. If the aim of the Brazilian Constitution is to protect democracy, such methods of governance risk being unsustainable in the long term because of the inconsistent standards many parts of the judicial system support. While the courts do protect the integrity of democratic processes and institutions, their over-involvement in politics has led to the erosion of the relevance of the Brazilian election process, as unelected officials have assumed more of a role in shaping political outcomes.

Bibliography

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Borges, A. (2021) ‘The illusion of electoral stability: From party system erosion to right-wing populism in Brazil’, Journal of Politics in Latin America, 13(2), pp. 166–191. doi:10.1177/1866802X211005164.

de Sá e Silva, F. (2022) ‘Relational legal consciousness and anticorruption: Lava Jato, social media interactions, and the co-production of law’s detraction in Brazil (2017–2019)’, Law & Society Review, 56(3), pp. 344–368. doi:10.1111/lasr.12620.

Grangeia, M.L. (2025) ‘In the name of integrity? Anticorruption discourse of Brazilian Operation Lava Jato’, Latin American Research Review, 60(2), pp. 235–255. doi:10.1017/lar.2024.61.

Melo, M.A. (2016) ‘Latin America’s new turbulence: Crisis and integrity in Brazil’, Journal of Democracy, 27(2), pp. 50–65. doi:10.1353/jod.2016.0019.

Rubio, R. and de Andrade Monteiro, V.D.A. (2023) ‘Preserving trust in democracy: The Brazilian Superior Electoral Court’s quest to tackle disinformation in elections’, South African Journal of International Affairs, 30(3), pp. 497–520. doi:10.1080/10220461.2023.2274860.

Vallinder, T. (1994) ‘The judicialization of politics. A world-wide phenomenon: Introduction’, International Political Science Review, 15(2), pp. 91–99. doi:10.1177/019251219401500201.

Walker, A.P.P. and Friendly, A. (2024) ‘Master planning “as a verb”: Enforcing participatory planning through the Brazilian courts’, Planning Practice and Research, 39(14). doi:10.1080/02697459.2024.2402127.