Judicial Power and Democratic Erosion: The Procedural–Substantive Dilemma of Democracy in the Brazilian Supreme Court
By Julia Wand-del-Rey Cani
Introduction: The Procedural-Substantive Dilemma
This post contributes to understanding how Brazil’s Supreme Court (STF) has comprehended its democratic role, particularly during the Bolsonaro era, and argues that there is a tension between substantive democratic defense and procedural consistency. More broadly, it distinguishes between constitutional courts balancing democratic substance and democratic procedure, with the aim of answering the following question: to what extent should judicial self-regulation be constrained during periods of democratic erosion?
The Brazilian Supreme Court’s seriatim decision-making system presents unique analytical challenges when attempting to identify coherent democratic concepts in its jurisprudence. In many countries, when judges on a panel differ in their approach to resolving a case, this divergence is identified as dissent. It may take the form of separate opinions written by the members who uphold minority positions.[1] A dissenting opinion is then published alongside the opinion of the Court. In Brazil, by contrast, when judges are resolving a case, regardless of whether dissent emerges during the deliberative process, “the decision-making process is purely aggregative. Every justice writes her own opinion and all opinions are published. The form of publication is thus seriatim.”[2] In short, in the seriatim system, the judges write separate individual opinions rather than a unified court opinion. Such aggregative opinion makes it hard to discern the Court’s concept of democracy, though hints appear in justices’ speeches and votes.


The Role of Brazil’s Supreme Court in Defending Democracy
In authoritarian contexts, democratic institutions are under attacks and partisan actors often seek to undermine the independence of constitutional courts. As Rosalind Dixon notes,[3] this can involve co-opting judicial review to neutralize its role in constraining anti-democratic change or weakening the court’s autonomous control over procedural, deliberative, voting, and publication norms. At the same time, Giménez and Mendes emphasize the value of flexible self-regulation, allowing courts to adapt procedural rules to diverse circumstances without external interference.[4] Therefore, at least part of the legal doctrine agrees that some procedural flexibility is acceptable in the decision-making practice of constitutional courts.
As the guardian of the Constitution and its principles, the Brazilian Supreme Court, which is the constitutional court of Brazil, plays a central role in defending democracy in Brazil. This is a competence the Court has held since the Constitution of 1988, though its exercise has become more prominent between 2020 and 2025, due to the growing democratic erosion following the rise of the far-right to power.
From 2018 to 2022, Jair Bolsonaro held the presidency of Brazil. After losing his re-election to the opposition leader Luiz Inácio Lula da Silva, who took office in 2023, Bolsonaro’s term ended amid mounting political tensions. Baseless allegations of fraud in the country’s electronic voting system spread widely,[5] while supporters set up encampments outside military barracks, demanding Lula’s removal and making repeated threats against members of the Supreme Court. This atmosphere of political instability culminated on January 8, 2023, when the headquarters of the three branches of the Republic in Brasília were invaded and vandalized in an attempted coup d’état,[6] which reportedly included a plan to assassinate the President of the Republic, the Vice President, and a Supreme Court justice.[7]
This context of systematically undermining electoral integrity, institutional respect, and the peaceful transfer of power, characteristic of contemporary authoritarianism, made the defense of democracy an unavoidable imperative to the Supreme Court. This defense was articulated – still during Jair Bolsonaro’s term, when Justice Luiz Fux stated that “[T]here was not a single day when the legitimacy of our decisions was not questioned, whether through hostile words or anti-democratic acts”, and that “future generations, less influenced by today’s passions, will recognize the Judiciary’s role in protecting democracy, human rights, and institutional stability.”[8]
A speech of Justice Roberto Barroso in 2025 offers another noteworthy example:
“[W]e are among the few cases worldwide where a court managed to avert a serious democratic erosion—without any disruption to the institutions. We played a decisive role in safeguarding democracy. In a democracy, there is room for all: conservatives, liberals, and progressives. No one holds a monopoly on virtue or love for Brazil. Whoever wins the elections takes office. Whoever loses can try to win in the next elections. And whoever wins must respect the rules of the game and the fundamental rights of everyone. That is what a constitutional democracy is, and it is non-negotiable.”[9]

The defense of democracy does not exempt the Court itself from being subject to limits, as Justice Alexandre de Moraes himself acknowledged in one of his opinions. Citing Roscoe Pound,[10] he stated that “judicial interpretation, including activism, must be grounded in the Constitution, because there is no—and cannot exist—unlimited power, not even for the Brazilian Supreme Court, since democracy does not allow its agents to wield absolute power or to be, like the Eastern Roman emperors, exempt from the law.”[11] The justices themselves have articulated their understanding of the Court’s democratic role in revealing ways. These statements offer windows into how the STF conceptualizes democracy, and the tensions within that conception and the decision-making practice of the Court.
As can be observed, different conceptions of democracy emerge from the excerpts above. Justice Alexandre de Moraes emphasizes a rule-of-law-centered view, in which all authorities must be subject to the Constitution. Justice Luiz Fux, at least in principle, has expressed a vision of the judiciary as a guardian of legitimacy and institutional stability. Justice Roberto Barroso, in turn, adopts a pluralist perspective, aligning his views with what Robert Dahl described as ‘polyarchy’.[12]
Could it be argued that any of these conceptions most accurately represents the Court’s institutional position? Put differently, is there a single conception of democracy uniformly endorsed by the justices?
Under the Brazilian aggregative voting model, the answer appears to be no, as individual justices interpret democracy differently and base their decisions on distinct premises. The absence of a single, coherent concept of democracy, which could be a consequence of the seriatim voting system, was not an obstacle to the defense of democracy against authoritarian threats. The Court undeniably took actions that substantively protected democratic values. Nonetheless, a lack of clarity about what the concept fully entails may have allowed practices that did not strictly adhere to procedural rules, exposing a procedural-substantive dilemma. In other words, it may have permitted greater procedural flexibility in the decision-making, raising fundamental questions regarding how democratic objectives relate to the methods employed to achieve them. Ultimately, it concerns the relationship between democratic ends and democratic means.

Procedural Flexibility in Defending Democracy
One common aspect in democracies is having due process as a fundamental legal principle, ensuring fair treatment by courts and judges that are part of the judicial system. While it is often associated with its corollary principles — the right to a full defense and adversarial proceedings13 — due process also entails consistency in the application of law, transparency in judicial proceedings, and safeguards against arbitrariness.
That means that any decision-making by the court, which may include public or internal deliberations, procedural innovations or new forms of delivering the reasoning behind a ruling, must consistently follow legal provisions. In other words, to maintain legal certainty, courts should avoid the unpredictability that comes with not applying legal principles regularly across similar cases.[14] Accordingly, abrupt shifts in decision-making practices may violate due process, necessary predictability and, thus, interfere with lawful legal outcomes. In sum, due process applies in the context of judicial decision-making, ensuring that even powerful constitutional or supreme courts like the STF act within legal and procedural boundaries.However, these boundaries are often unclear.
Is it correct to say that all aspects of due process were respected in the mentioned judgment that condemned former president Jair Bolsonaro?[15] And in other rulings of the Court? Answering these questions is important because, in addition to the protection of democratic ends, the means of doing so matter as well.
A recurring assertion by justices of STF in decisions involving acts threatening democracy is that due process of law, a principle guaranteed by Article 5 of the Constitution, was fully respected.[16] But what does respecting due process truly entail, apart from respecting the right to full defense and adversarial proceedings (which seems to have been guaranteed in Bolsonaro’s case)? Do measures such as initiating investigations ex officio, influencing the designation of a rapporteur,[17] issuing arrest orders monocratically, alternating the focus between specific cases and abstract legal theses, or occasionally changing the decision-making method from seriatim to per curiam, all indicate absolute respect for due process of law?
Some specific criticisms were directed at the STF’s decision-making process regarding the decisions issued in the context of democratic erosion.[18] First, it was argued that it was not clear whether the court had jurisdiction over those cases. Second, concerns were raised about the legality of the same body conducting both the investigation and trial stages. Third, the assignment of the rapporteur was criticized as Justice Alexandre de Moraes followed a decision by the then-president of the court, Dias Toffoli, rather than the Court’s electronic case-drawing system. On the one hand, it is acknowledged that there was an opportunity for full defense and adversarial proceedings. On the other hand, doubts remain regarding the legality of these formal matters that also shape the judgment.
Additional criticisms of the decision-making process arise in cases not directly related to Bolsonaro’s judgment but deeply connected to the defense of important aspects of democracy. For example, during the trial in an abstract action alleging rights violations under Rio de Janeiro’s public security policy, in which the Court authorized measures to reduce police lethality,[19] Justices shifted the decision-making process by holding a closed preliminary deliberation (despite the court’s deliberations being public) and by deciding through the per curiam method (collective opinion) instead of seriatim (individual opinions).[20] This change aligns with many proposals aimed at improving the STF’s decision-making process, given that its rulings often lack an intelligible reason for the decision due to the aggregation of individual votes that barely communicate with one another. Despite the potential benefits of this change, an important fact must be considered: it is merely an experiment. It was a specific informal change made to adjudicate a single issue only.
Another decision-making innovation by the court occurs when it crafts i.e. “legal theses”[21] in concrete cases, which normally have effects between the parties only. This happened, for example, in a Habeas Corpus case,[22] where the court issued a rule stating that in all criminal cases involving cooperating and non-cooperating defendants, the latter have the right to present their final arguments after the former, with the aim of guiding lower courts in similar cases. “Theses”, i.e. succinct statements summarizing the Court’s deliberations, could be seen as the opinion of the Court. Hence, they can help in the development of a system of precedents. This innovation might as well be positive to the general decision-making of the Court. Nonetheless, the use of this mechanism in decision-making has been adopted at random both in concrete review, beyond extraordinary appeals with general repercussion, and in abstract review. This means it is not known in advance in which cases the Court is going to enact “theses” as the result of its deliberation.
The Need for Self-Regulation and Accountability
Can the STF change its decision-making model to incorporate “legal theses” as part of its rulings? Can it alter the effects of its decisions, introduce a closed preliminary deliberation stage, allow for joint votes, or issue a per curiam ruling? More generally, is it legitimate for the STF to deviate from strict procedural rules? Would this simply reflect the court’s capacity for self-regulation?
It remains unclear where the line lies between matters that constitute internal procedural decisions of the Court and those that require legislative regulation through the duly enacted legislative process in Congress. Amid such tensions, it is important that the court avoids informal, trial-and-error, or experimental approaches to decision-making. Such informality leads to inconsistencies that undermine due process. As to whether due process was fully respected: while basic adversarial rights were maintained, the Supreme Court’s procedural innovations created uncertainty about consistent application of legal standards, revealing an inherent tension in constitutional democracy.
![An audience listening to a panel in front of a banner reading "Democracia Inabalada" [Unshakeable Democracy].](https://trafo.hypotheses.org/files/2026/02/5.Credits_of_the_photo_Lula_Marques_Agencia_Brasil-1024x562.jpg)
As a matter of fact, the STF was responsible for containing authoritarian impulses against Brazilian democracy. However, this fact does not preclude the need for self-regulation and accountability. The need for limits on the self-regulation capacity of courts and consistent application of due process are, then, necessary because otherwise, complete decision-making flexibility shifts the court’s democratic posture in subtle but meaningful ways, and that attracts forms of democratic backlash. Every institutional choice involves trade-offs. Selecting one decision-making model over another requires sacrificing certain features to gain others. Isolated changes, however, offer no measurable, consistent benefits.
A more prudent approach by STF is to regulate proceedings involving bolder reforms – those that significantly affect how decisions are made, their external effects, and their influence on other judicial instances. Crafting “legal theses” for concrete cases or changing the effects of decisions cannot be considered low-impact innovations. Similarly, the per curiam “experiment”, in which the Court issues a collective opinion after a closed preliminary deliberation, may undermine the transparency demanded by the Constitution.
As for the procedural innovations regarding decisions issued in the context of democratic erosion, it is expected that, when not formally provided for in the rules, new practices should be deeply motivated or based on the court’s consolidated jurisprudence. In the end, procedural compliance is an essential requirement to uphold democratic principles. Even when aimed at prioritizing the ultimate defense of democracy, any procedural lapses during this process may compromise the legitimacy of the resulting decisions and undermine the court’s role as guardian of the constitution.
In this contribution, Artificial Intelligence (AI) was used solely for English language review. The original idea, as well as all the analyses, examples and conclusion, are entirely the author’s.
About the Author
Julia Wand-Del-Rey Cani is a Professor of Constitutional Law at the Mackenzie Presbyterian University Law School (UPM), in Brazil. She holds a Ph.D. in Constitutional Law from the University of São Paulo (USP, 2025), which included a research stay at the University of Münster, Germany (2024), under the PRINT Institutional Internationalization Program funded by CAPES – agency under the Brazilian Ministry of Education. Between 2022 and 2023, she was a Fox Fellow at the MacMillan Center for International and Area Studies and a Visiting Fellow at the Information Society Project at Yale Law School, Yale University. Julia also holds an LL.M. in Law from the Federal University of Rio de Janeiro (UFRJ, 2016) and an LL.B. from the Pontifical Catholic University of Rio de Janeiro (PUC-Rio, 2008). She previously worked as a Research Fellow at Fundação Getulio Vargas Law School in Rio de Janeiro (FGV Direito Rio) and taught Legal Theory at the Federal University of Rio de Janeiro. Her research explores constitutional decision-making, with a particular focus on the deliberative dynamics of the Brazilian Supreme Court.
Notes
1 See, for instance, KELEMEN, Katalin, Dissents and Other Separate Opinions, in EPSTEIN, Lee et al. (eds.), The Oxford Handbook of Comparative Judicial Behaviour (Oxford University Press, 2025), 545-564.
2 Hence, in the Brazilian case, even in cases of unanimous decisions, every opinion is made publicly available as an inherent part of the court’s ruling. See, for instance, SILVA, Virgílio Afonso da, Deciding without deliberating (ICON – International Journal of Constitutional Law, 2013), 557-584.
3 DIXON, Rosalind, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (Oxford University Press, 2023), 320.
4 MENDES, Conrado Hübner, Constitutional courts and deliberative democracy (Oxford University Press, 2013), 249. GIMÉNEZ, Francisca Pou, Constitutional Change and the Supreme Court Institutional Architecture: Decisional indeterminacy as an obstacle to legitimacy, in Andrea Castagnola and Saúl López-Noriega (eds.), Judicial Politics in Mexico: The Supreme Court and the Transition to Democracy (Routledge, 2017), 117-146.
5 See, for instance: https://verfassungsblog.de/how-courts-became-a-battlefront-against-disinformation/.
6 See, for instance: https://www.thehindu.com/news/international/pro-bolsonaro-protesters-storm-brazils-congress-in-capital/article66354612.ece.
7 The justices of the first panel of Brazil’s Supreme Court concluded the trial with a 4–1 vote. Former President Jair Bolsonaro and seven co-defendants were found guilty of armed criminal organization, attempted violent abolition of the democratic rule of law, coup d’état, aggravated damage through violence and serious threat, and the deterioration of protected heritage. Most defendants received sentences exceeding 20 years, with Bolsonaro alone sentenced to more than 27 years in prison. BRAZIL. Supremo Tribunal Federal (STF). AP 2668. Decided 09/11/2025.
8 BRAZIL. Supremo Tribunal Federal (STF). Final speech of Luiz Fux as Chief Justice, after two years in office, on 09/08/2022. It is worth mentioning that Fux made this statement and, some time later, acquitted nearly the entire coup leadership during the AP 2668 trial.
9 BRAZIL. Supremo Tribunal Federal (STF). At the first Plenary session of the Brazilian Supreme Court (STF) in the second semester, the Court’s President.
10 POUND, Roscoe, Liberdade e garantias constitucionais (Ibrasa, 1976), 164.
11 BRAZIL. Supremo Tribunal Federal (STF). ADI 5.526-DF. Decided 08/07/2018.
12 DAHL, Robert A., Polyarchy Participation and Opposition (Yale University Press, 1972), 267.
13 BARROSO, Luís Roberto, Curso de direito constitucional contemporâneo: os conceitos fundamentais e a construção do novo modelo (Saraiva, 2024), 808.
14 See, for instance: BARBOZA, Estefânia; BUSS, Gustavo; CANI, Julia, Precedentes como alicerce do controle de constitucionalidade responsivo: estratégias para conter a degradação democrática (REI – Revista de Estudos Institucionais, 2025), 888–907.
15 BRAZIL. Supremo Tribunal Federal (STF). AP 2668. Decided 09/11/2025.
16 BRAZIL. Supremo Tribunal Federal (STF). AP 2668. Decided 09/11/2025.
17 A rapporteur is essentially the judge assigned to manage and write the initial opinion for a case.
18 See, for instance: VIEIRA, Oscar Vilhena, O STF e a defesa da democracia no Brasil (Journal of Democracy em Português, 2023). ARGUELHES, Diego Werneck; ESTEVES, Luiz Fernando Gomes, Dino e Moraes: a ‘ministrocracia’ respira (Jota, 2025).
19 BRAZIL. Supremo Tribunal Federal (STF). ADPF 635. Decided 04/03/2025.
20 Courts may decide per curiam when they resolve a case through only one institutional decision. See: SILVA, Virgílio Afonso da, Beyond Europe and the United States: the wide world of judicial review, in: DELANEY, Erin F.; DIXON, Rosalind (eds.), Comparative Judicial Review (Edward Elgar Publishing, 2018), 318-336.
21 In a general sense, to decide a case is to resolve a specific issue taken for trial before the Court by specific parties. To decide that case, the justices will rule a decision focusing only on the facts involved in that specific legal action. While deciding a “thesis” is to decide the matter in an abstract way, that is, to focus on the legal question regardless of the particularities of the case or the procedural rules for each type of legal action. In the latter, the facts serve to introduce a certain topic to the deliberation process rather than to limit the form or scope of the decision. To enact a “thesis” is to crystallize the opinion of the court in a concise statement, after collecting votes from the justices as to the final content of that statement. CANI, Julia, Untangling the Complexities of the Brazilian Judicial System (MacMillan Center for International and Area Studies at Yale, 2023).
22 BRAZIL. Supremo Tribunal Federal (STF). HC 166.373 Decided 05/18/2023.
22 BRAZIL. Supremo Tribunal Federal (STF). HC 166.373 Decided 05/18/2023
Citation: Julia Wand-del-Rey Cani, Judicial Power and Democratic Erosion: The Procedural–Substantive Dilemma of Democracy in the Brazilian Supreme Court, in: TRAFO – Blog for Transregional Research, 05.02.2026, https://trafo.hypotheses.org/64252
OpenEdition suggests that you cite this post as follows:
Forum Transregionale Studien (February 10, 2026). Judicial Power and Democratic Erosion: The Procedural–Substantive Dilemma of Democracy in the Brazilian Supreme Court. TRAFO – Blog for Transregional Research. Retrieved March 10, 2026 from https://doi.org/10.58079/15np6


