“Ideology comes after integrity”: An audience with Luis Roberto Barroso

Written by Kathryn Carlson on . Posted in Current features, Events, Features

The EUI’s School of Transnational Governance invited Luis Roberto Barroso, Justice of Brazil’s Supreme Federal Court, to deliver a ‘My Career’ Lecture at the EUI on 16 November 2018.  

The irony of being unable to comment on the recent election in Brazil is not lost on Justice Luis Roberto Barroso. After all, delivering opinions is at the heart of his position on the Brazilian Supreme Court.

But when speaking at an EUI ‘My Career’ event in November, Barroso made it clear that he could only tiptoe around the topic of far-right leader Jair Bolsonaro’s victory. Instead, Barroso steered the conversation toward his own experiences as a lawyer, a professor, and — since 2013 — a justice of the Supreme Court, as well as his philosophy on the role of the judiciary.

A very public Court

Being watched is no novelty to Barroso: In Brazil, all of the top court’s deliberations and judgments are shown on ‘Justice TV’. “Being a Supreme Court Justice is the only job where you tell your wife you’re going to work and she can check on television”, he joked, before quickly turning serious on the subject of the genuine need for transparency in a country rife with corruption: “In Latin America, the social imagination is that behind closed doors there’s something horrible going on.”

Justice Barroso with fellow panelists Tatiana Falcao and Miguel Poiares Maduro

Although he remains optimistic about Brazilian democracy and the staying power of its 30-year-old constitution, Barroso did concede that the outlook in 2018 was “kind of gloomy” — due to the impeachment of former President Dilma Rousseff, the economic recession of recent years, and the long-running consequences of “shameful” corruption in much of the public and private sector.

That’s why he welcomes public scrutiny of judicial proceedings. ‘I do everything in the light of day’, said Barroso, who prefers never worrying about being the subject of speculation. Plus, the cameras encourage justices to come fully prepared to meetings. The downsides? Barroso admits that achieving consensus can be more difficult and that the lure of the public eye sometimes encourages excessive verbosity.

A trio of roles

His chief complaint about the Brazilian Supreme Court stems from its expansive scope. All Supreme Courts, he said, exist to preserve a democratic regime and to protect fundamental rights. In Brazil, the Court has a third job: It serves as a criminal court for authorities. This additional responsibility naturally attracts criticism. As Barroso explained, a ruling on gay rights or abortion may be controversial, but it’s not viewed as a political crisis.

Not that he thinks Supreme Courts should shy away from politics. Referring to an upcoming article he wrote for the American Journal of Comparative Law, Barroso laid out a trio of roles for constitutional courts.

There’s the counter-majoritarian role, invalidating decisions of other branches of government.

There’s the representative role, acting on behalf of the interests of the electorate. As Barroso stressed, ‘The court cannot be indifferent to the social centre. Any power you exercise in democracy must be representative.’ Citing landmark U.S. Supreme Court cases Griswold v. Connecticut (which widened access to contraception) and Lawrence v. Texas (which overturned anti-sodomy laws), he argued that when the legislative process falls short of satisfying the electorate’s demands, the Court must step in.

Justice Barroso

Finally, he addressed the enlightened role, or the idea that the Supreme Court must make changes to guarantee civil liberties and essential freedoms, even if these changes do not have the support of legislators, or even the majority of society. It was that principle in effect, he said, when the U.S. Supreme Court decriminalized abortion with Roe v. Wade, and when Israel’s Supreme Court blocked legislation allowing the use of torture.

How much influence is too much influence?

Upon hearing Barroso’s view of enlightenment, Professor Sergio Fabbrini, the Director of the LUISS School of Government, responded that judicialising the political process in this way could be dangerous: “I don’t want to be enlightened by a judge. I want to be enlightened by a public debate.”

Barroso — who noted that he had protested Brazil’s military dictatorship while in law school — also received some surprised looks from the audience when he dismissed the risk of the global far right.

“It’s no novelty that liberal democracy is under attack”, he said, citing the examples of Nazi Germany, Fascist Italy and Communism. Eventually, he predicted, the far right will “dissolve” naturally: “As long as the rules of democracy remain, that’s the antidote to authoritarianism”.

For STG Policy Leader Fellow Tatiana Falcão, a Brazilian lawyer who also sat on the panel, the key moment was Barroso’s guarantee that the advances in civil liberties made by the Brazilian Supreme Court in recent decades would not be rolled back.

Speaking to EUI Times after the event, Falcão said she’s not as hopeful as Barroso, and fears how the recent election may shape their country in the years ahead.

‘There is a deep populist sentiment at the moment,’ she said. ‘The Supreme Court must be ready to react to that sentiment.’

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