The STF Enters the Logic of Institutional Factional Warfare
Decisions that neutralize decisions, jurisdictional disputes, and procedural shortcuts turn the final stretch of the election into a conflict over who may decide who may speak
Fernando Fagundes Ferreira ·
The final stretch of the 2026 elections has found Brazil’s Supreme Federal Court (STF) and Superior Electoral Court (TSE) immersed in a dispute that has already moved beyond isolated legal disagreements. Individual rulings are reviewed by other individual rulings, jurisdiction is contested, new procedural avenues are pursued, and the assignment of cases itself moves to the center of the conflict.
The latest episode began in the Electoral Court. Justice André Mendonça, sitting on the TSE, ordered the removal of 1,125 posts relating to the controversy over Our Lady of Aparecida and presidential candidate Flávio Bolsonaro. A post by comedian Antonio Tabet was among the affected content.
Tabet appealed to the Supreme Court. Justice Flávio Dino found that there was not sufficient certainty about the unlawfulness of the expression to justify so severe a restriction on freedom of speech. He ordered the post restored and extended the ruling to the other posts removed on the same grounds.
The controversy could have remained within the familiar tension between freedom of expression and the fight against electoral disinformation. It did not.
The following day, TSE president Justice Kassio Nunes Marques sent a letter to STF president Edson Fachin warning of the risk that the two courts’ jurisdictions would overlap and requesting measures concerning the assignment of urgent petitions related to the 2026 elections.
From that point on, Our Lady of Aparecida ceases to be the center of the story.
The question becomes a different one: who controls the electoral controller?
The copydesk acquired a copydesk
Lawfare4All had already been drawing attention to a risk created by growing judicial intervention in electoral speech: the transformation of the Electoral Court into a kind of campaign copydesk.
That description does not mean the TSE cannot act against electoral offenses. The problem arises when the judicial function begins to resemble an editorial one, deciding not only on clearly unlawful conduct but also on interpretation, context, satire, discursive framing, and whether content remains in public debate.
Now a second layer has emerged. If the Electoral Court decides what can remain in political debate, the STF begins to decide when those Electoral Court decisions can remain in force.
The copydesk acquired a copydesk.
And the dispute over who may speak becomes a dispute over who may decide who may speak.
The problem moves up a floor
The most significant point in Kassio’s letter is not an abstract defense of the Electoral Court’s autonomy. The TSE president expresses concern about the use of constitutional complaints and urgent STF rulings as avenues capable of directly interfering with electoral decisions while the campaign is still under way.
The question is not whether the Supreme Court has the power to exercise constitutional review over Electoral Court decisions. It does.
The question is what happens when that review is carried out, in the middle of an election, through individual rulings capable of immediately affecting what does or does not circulate in public debate.
Elections run on a clock that does not stop while courts debate jurisdiction. A post removed today and restored after voting does not have the same effect. Nor does a statement allowed now and deemed unlawful weeks later.
In electoral proceedings, time is part of the law.
Institutional self-consumption
There is an irony that is hard to ignore.
The Electoral Court claims room to decide on campaign messaging, content, and disinformation. At the same time, its president seeks protection from what he sees as excessive Supreme Court interference in the review of those decisions.
The system thus begins to experience internally a problem similar to the one it produces externally.
First, one court decides whether certain speech may circulate. Then another court decides whether the first court could prevent that speech from circulating. The controversy then moves on to jurisdiction, prior assignment, and case allocation.
This is where the metaphor of institutional factional warfare makes sense: not as a claim that organized groups exist within the Supreme Court, but as a description of a dynamic in which different parts of the system begin to use procedural instruments to block, review, or limit one another’s decisions.
The warfare, in this case, is procedural.
The system experiences its own remedy
The Our Lady of Aparecida episode began as a discussion of electoral disinformation, became a debate about freedom of expression, developed into a jurisdictional conflict, and now reaches the very way cases are brought before Supreme Court justices.
That progression may be more important than the original content of the posts.
For years, the Brazilian debate focused on how far courts could go to protect democracy, elections, and institutions. Now a different question emerges: who controls these mechanisms when they begin to be used within the system of control itself?
The answer should not depend on which justice issued a ruling we liked, or which candidate benefited or suffered in a particular episode.
Because exceptional instruments rarely remain the exclusive property of those who created them.
Sooner or later, they circulate.
And the system begins to experience its own remedy.