Brazil’s Emerging Judicial Dictatorship
A single out-of-control judge can subvert massive sectors of public life with a little help from his friends.
Imagine that, in the U.S., a Supreme Court justice who is the president and vice president’s long-time associate orders some people be jailed without trial for posting threats on social media. Further, he sentences a congressman to nine years in prison for online threats to the Court. Then, he launches an investigation of fake news that leads to dozens of social media accounts being blocked and posts being removed and the messaging app Telegram being temporarily blocked throughout the country; he also orders raids on businesspeople without much evidence of wrongdoing.
Then the January 6 riot happens. Further emboldened, the Supreme Court justice suspends a sitting governor from his job, continues banning online voices, and jails, without bail, hundreds of people who did not enter the Capitol and just protested nearby.
This is precisely what is happening in Brazil. Alexandre de Moraes, a Brazilian Supreme Court justice that also heads the country’s Supreme Electoral Court, has accumulated power such that many, inside and outside Brazil, both left and right, are asking whether Brazil is slowly turning into a judicial dictatorship or, as many legal experts in Brazil call it, a juristocracia.
Moraes's actions happen in the context of a standoff between then-president Jair Bolsonaro and the Supremo Tribunal Federal (STF), the country’s Supreme Court. The conflict between the Court and Bolsonaro is as old as his presidency, but it came to a high point after Bolsonaro lost the presidential election on October 30, 2022, against Lula da Silva, a far-left candidate and former president. While Bolsonaro refused to concede directly, he asked protests against the results be peaceful and said he would obey the Constitution, which meant that Lula would peacefully become the next president of Brazil.
However, in a strange turn of events, while Bolsonaro was eating Mickey Mouse–shaped pancakes in Orlando, a group of Bolsonaristas (supporters of Bolsonaro) attacked the Brazilian Supreme Court, Congress, and Presidential Palace in Brasilia and called for a military coup. Lula blamed Bolsonaro personally for the attacks; Moraes quickly moved to suspend Brasilia’s governor and security chief from their posts because they were Bolsonaristas, vitiating the presumption of innocence.
Many are worried that Moraes is destroying democracy in order to save it by adding jury and executioner to his title of judge. Even the BBC and the New York Times, have all voiced concerns with Moraes’s actions.
But who is Alexandre de Moraes, and how did he accumulate the power to destroy Brazilian democracy?
Moraes, born in Sao Paulo, has significant links with Lula and his vice president, Geraldo Alckmin. He worked as the lawyer of the Partido dos Trabalhadores (PT), the party of president Lula da Silva in three different presidential campaigns, and was the legal advisor of the Central Única dos Trabalhadores, the largest union in Latin America, founded by Lula.
In 2002, Alckmin, then the governor of Sao Paulo, appointed Moraes as the state’s secretary of justice, where he served until 2005. Lula then appointed him to the National Council of Justice, an advisory body for improving the legal system. He served as transport secretary of the Municipality of Sao Paulo between 2007 and 2010. He also served as secretary of public safety of Sao Paulo under Alckmin between 2015 and 2016.
At that time, President Dilma Rousseff was facing impeachment for corruption allegations. Many politicians were facing legal action under Operation Lava Jato (Car Wash) for bribery and vote-buying with public money. As a result, political threats and blackmailing were common. In one instance, Marcela Temer, the second lady of Brazil, had been threatened with audio recordings that would damage her husband’s reputation. As secretary of public safety of Sao Paulo, Moraes led the investigation into the case, which was resolved in a few months.
Unsurprisingly, when Rousseff was removed and Michel Temer became Brazil’s president, Temer appointed Moraes as justice minister. Less than a year later, Temer appointed Moraes to an open seat on the STF. In just a few years, Moraes went from a mid-level bureaucrat to one of the most powerful men in Brazil.
He used that power. In 2019, months after Bolsonaro’s election, the Supreme Court’s chief justice issued an order authorizing the Court to start a criminal investigation instead of waiting for the attorney general and law enforcement. To say that this immensely expanded the STF’s power, with little to no oversight, would be an understatement.
And Moraes was to head the Court’s first investigation under this rubric, which would be about a left-wing hobbyhorse: fake news. Moraes's first move was to order a magazine to retract an article linking the Court’s chief justice to corruption for lack of evidence; he had to rescind the order when the magazine provided the evidence.
Moraes moved his attention to online disinformation, targeting Bolsonaristas. The investigation targeted both absolute fabrications—fake news in the most literal sense—but also individuals who simply cast doubt on, for example, the efficacy of lockdowns or Covid vaccines. This gave Moraes the power to investigate, raid, censor, and jail whoever attacked Brazilian democracy or the Brazilian Supreme Court. Of course, it was Moraes’s power to define an attack on democracy.
Moraes ordered social media to take down accounts of at least five members of Congress, including 26-year-old Nikolas Ferreira, the most-voted congressman in the recent elections, and over a dozen right-wing commentators, including one of Brazil’s most-listened podcast hosts. In many cases, according to a New York Times investigation, the rationale behind the order is not explained—nor is there a possibility of appeal. After Telegram refused to comply with one of his orders, he had the service banned in the country for two days.
In August 2022, a few months before the presidential election, Moraes was appointed as chief of the Supreme Electoral Court. There had been talks among Brazilian politicians and Supreme Court justices to end Moraes’s investigations and reduce his power, but the riots in Brasília gave him even more.
After the riots, the usual voices on the left called for more power for Moraes. Milly Lacombe, a left-wing journalist, wrote, “Under the threat of a Nazi-fascist-inspired insurrection, is it worth temporarily suppressing individual freedoms in the name of collective freedom? I would say yes.”
Moreover, it was recently revealed that Moraes had authorized law enforcement to access phone records and data for eight people under investigation—as well as for whomever got in touch with them. That would include family, friends, journalists, co-workers, lawyers, priests, doctors, and psychologists. Anyone who had contacted these eight people under investigation (whose names were not revealed) could have their phone records and data made public. This would include call records with time and place, messages, e-mails, and GPS records.
The day after the riots in Brasília, hundreds of Bolsonaro supporters decided to camp in front of the headquarters of the Brazilian Army, and at other quarters across the country. Bolsonaro had already condemned the attacks and most of his supporters called for the demonstrations to stop. However questionable their decision to continue, they were doing so peacefully and making use of a constitutional right.
Moraes, however, disagreed. He called to dissolve the camps in twenty-four hours and said that any civil or military authority that refused to do so could be held criminally liable. Any person in the camps had to be sent to prison under charges of terrorist acts, criminal association, violent abolition of the rule of law, coup, threats, persecution, and incitation to crime.
Around 1,400 were detained, but only about 200 could be directly linked to acts of vandalism and rioting. Nine-hundred forty-two people were held by Moraes under preventive custody without bail, while 462 will stand trial under provisional release.
Now, of course, Bolsonaro became a target. The New York Times reported that most Supreme Court justices do not support arresting Bolsonaro due to lack of evidence, but might seek to make him ineligible to run for office for eight years for abuse of power, due to his management of the national election agency.
Moraes has spiraled out of control to the degree that even within the ranks of the PT he is seen as dangerous and power-hungry.
What comes next? Despite the fact that America’s President Joe Biden supported Lula, he might find himself surprised when Lula does not align with U.S. interests. An old-school socialist, during his first time in power, Lula was close to Chávez and the Castros in building a left-wing network across Latin America through the Sao Paulo Forum. Biden threw Bolsonaro aside simply because he was too Trumpian for his liking, despite Bolsonaro’s more welcome disposition to align with U.S. foreign policy.
Brazil is South America’s largest country, and Bolsonaro was one of former President Donald Trump’s most solid allies abroad. Americans should closely watch Brazil’s period of instability, as it could affect the whole region. And, of course, with Lula in power again, the Sao Paulo Forum will find fresh strength to finance and organize left-wing groups and candidates across the region—and even in the U.S.
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Brazil just underwent its most divisive, toxic, and polarizing elections since it became a democracy. Lula became president in a closely contested race, running on an everything-but-Bolsonaro platform where he was joined in coalition by all kinds of politicians. (In fact, Alckmin is considered part of the traditional center-right of Brazil.) While no party has the majority in Congress, Bolsonaristas are the largest force. With Moraes’s judicial activism, this is a recipe for disaster.
Brazil is becoming a cautionary tale of using putatively democratic institutions to destroy democracy and the dangers of judicial overreach. Moraes is the face of the paradox of judicial review: What happens when the Court interprets the Constitution in a way that expands its power beyond what the Constitution intends? Who is there to put an end to it? Is this what progressives across the world mean when they say that more should be done to combat misinformation and fake news?
In Brazil, the result has been clear: A philosopher-king might end up ruling amid ruins.