The Court's Debate Exposes the Image the STF Projects of Itself
Nineteen days before the first round, the session on Alexandre de Moraes and the Banco Master case exposes a Court forced to debate not only investigation, competence and impartiality, but the very way it presents itself before a legal dispute that also produces political, electoral and international effects.
Fernando Fagundes Ferreira ·
The Brazilian Supreme Court stepped onto unusual ground this Tuesday, September 15. The extraordinary session convened to consider the possible opening of an investigation related to elements of the Banco Master case and to Justice Alexandre de Moraes progressively stopped being confined to the question that had formally brought the case to the full bench. The Court itself began to discuss the legitimacy of the procedures used to investigate, report and judge the controversy, broadening the debate to issues such as competence, impediment, recusal, the Court's internal organization and the alleged political-electoral purpose of procedural acts.
The process began by looking at one Justice, but over the hours it forced the tribunal to look at itself as well. This shift in scale did not stem only from the intensity of the personal clashes that took place on the bench. The institutionally most relevant aspect was the way investigation, case assignment, due process, impartiality and the dispute over political motives came to interconnect within the same controversy.
The question therefore ceased to be only whether Alexandre de Moraes should be investigated. It came to involve a harder question as well: who can decide on that investigation without their own conduct immediately becoming part of the conflict?
The law enters the conflict
The difficulty appeared in the procedural moves themselves. Dias Toffoli declared himself suspect and Kassio Nunes Marques impeded, while Flávio Dino and Gilmar Mendes questioned aspects of the reorganization of the proceedings related to the Master case under the presidency of Edson Fachin. Fachin defended his conduct and the institutional handling adopted.
None of this, in isolation, represents an anomaly. Competence, preemption, suspicion, impediment and the definition of case assignment are ordinary mechanisms of the judicial system, and they exist precisely to preserve due process. The situation takes on another dimension when those same instruments cease to be merely procedural safeguards and become part of a dispute over who has the legitimacy to apply, interpret or review them.
That is what the session placed before the public. The discussion no longer involved only which rules should prevail, but also who held the authority to establish the procedure and which institutional and political consequences might flow from it.
It is at this point that the law stops appearing merely as a mechanism for resolving the conflict and becomes the very territory in which the conflict unfolds.
Cross-accusations of instrumentalization
The dynamic became even more evident when Alexandre de Moraes, André Mendonça and Gilmar Mendes began debating the handling of the case and its possible purposes.
Moraes accused Mendonça of acting politically against him and stated that there had been an attempt to link him to a plea-bargain collaboration. Mendonça rejected the accusations and upheld the regularity of his own conduct. Gilmar Mendes, in turn, attributed a political-electoral bias to the handling of the episode, an interpretation equally contested by Mendonça.
What formed on the bench was therefore something more complex than a conventional legal disagreement. One Justice asserted that investigative procedures had been instrumentalized against him; another defended the legality of his own conduct; while other members of the Court questioned the purpose, the timing and the institutional effects of acts carried out over the course of the investigation.
The STF thus came to examine competing claims of legal instrumentalization. For a lawfare analysis, this is perhaps the most relevant point of the session. The question is no longer only which decision was legally correct; it now requires reconstructing who controlled each procedure, which guarantees were observed, what evidence supports the accusations, and how formally legal acts came to produce political, electoral and reputational effects beyond the case files.
It is within this machinery that the idea of lawfare self-cannibalization emerges.
This is not simply a matter of a Justice judging another Justice. The phenomenon runs deeper: the Court comes to analyze accusations of legal instrumentalization while its own members direct similar accusations at one another, so that the mechanisms designed to resolve the controversy also become part of it.
The election stopped being mere context
The proximity of the elections adds a decisive layer to the crisis. The session took place nineteen days before the first round, scheduled for October 4, but the electoral dimension did not remain outside the tribunal.
It entered the discussion explicitly.
Justices made direct references to the possibility of political-electoral effects associated with the handling of the procedures. Gilmar Mendes spoke of a political-electoral bias, while Moraes attributed political motive to Mendonça's conduct, which Mendonça rejected.
The connection between judicial procedure and electoral effects therefore ceased to be a hypothesis formulated by commentators or political adversaries. It became part of the very controversy debated by the Justices.
This environment produces a delicate duplicity. Every decision retains a procedural dimension, in which it must be analyzed according to competence, evidence, adversarial process and due process. At the same time, it immediately acquires a second life outside the case files, where it can be converted into an electoral argument, an instrument of political mobilization or an element of reputational dispute.
Nineteen days before the vote, that second dimension ceases to be peripheral.
The Court before its own image
Perhaps it is here that the session revealed its most uncomfortable aspect.
Tribunals do not fully control how they are perceived. The public image of an institution results from the combination of its decisions, its procedures, the language used by its members and the interpretation society produces of those behaviors.
But a public session also projects an institutional image, and Cármen Lúcia ended up voicing this dimension in a way unusual for a member of the Court itself.
Speaking during the judgment, the Justice said she was in a state of consternation and sadness over what was taking place in the Supreme Court. She also said she felt ashamed and spoke of a “civic malaise,” acknowledging that the judiciary should convey tranquility to society, but that the crisis publicly exposed had been producing the opposite effect.
The relevance of that statement goes beyond its emotional dimension. It shifts the problem of public perception inside the tribunal itself. It is no longer only journalists, political adversaries or outside observers assessing the image of the STF. A Justice acknowledged, during the session, that what was being displayed before society was producing institutional embarrassment and unease.
Hours earlier, Edson Fachin had opened the proceedings defending serenity, balance, institutional respect and the need to avoid personal confrontations, stressing that the Court should judge facts and legal questions.
Between the institutional image claimed at the opening of the session and the one acknowledged by Cármen Lúcia over the course of the judgment, a distance opened that perhaps summarizes the episode better than any isolated confrontation.
The STF was not only deciding a case. On camera, it was also showing how it reacts when the conflict reaches its own members.
The question, therefore, is not to determine which image society should form of the Court, but to observe which image the session's own public dynamics made available for evaluation, and how a member of the tribunal ended up acknowledging the discomfort produced by it.
The difficulty of finding a point outside the conflict
The structural problem appears in the succession of questions that came to arise from one another.
A doubt about a Justice's conduct requires deciding who may investigate him. If the handling of that investigation is contested, the need arises to define who is entitled to examine the investigator. If the case assignment is questioned, a new controversy opens over competence and procedural reorganization. When members of the panel itself declare themselves suspect or impeded, concern grows over the capacity to preserve enough institutional distance to arbitrate the conflict.
The law has formal answers for each of these situations. A constitutional court, however, also depends on something that cannot be produced automatically by a rule of procedure: public credibility.
The legal regularity of a composition does not by itself generate a perception of impartiality. A Justice may be formally qualified to take part in a given decision and still have that participation contested in the public sphere. When the distance between legal validity and perceived legitimacy grows, the tribunal's authority comes to depend not only on the content of its decisions but also on the trust placed in the procedure used to produce them.
That is why reducing the session to an episode of mutual insults means losing its most important dimension. The institutional problem lies not only in the tone used by the Justices, but in the fact that every attempt to organize the controversy generated a new dispute over who held the authority to organize it.
The conflict crosses the border
While the STF debated internally the accusations of legal instrumentalization, another dimension of the conflict was developing outside the country.
Eduardo Bolsonaro scheduled a trip to Washington to argue before American authorities for the reinstatement of sanctions against Alexandre de Moraes under the Global Magnitsky Act. According to Reuters, recent events related to the Master case would be used as part of the argument in favor of the measures.
The relevant fact lies not only in the existence of external political pressure, but in the attempt to convert events produced within the Brazilian justice system into grounds for the application of another state's legal and financial instruments against members of Brazil's Supreme Court.
It is at this point that the logic of lawfare stops operating only within national borders. The dispute over investigations, competences and legitimacy comes to seek effects in another jurisdiction, using foreign legal mechanisms as an extension of a political and institutional conflict that originated in Brazil.
This does not mean that every sanctions instrument is, by definition, lawfare. It means something more specific: when external legal mechanisms are strategically mobilized to produce pressure on actors involved in a domestic political dispute, they enter the analytical field of lawfare.
The controversy thus comes to operate in three simultaneous arenas. Within the case files, competence, evidence and guarantees are debated. In the electoral environment, procedural acts are converted into political narrative. Abroad, those same events become raw material for the attempt to produce legal and financial consequences for Brazilian officials.
Self-cannibalization, therefore, is no longer confined to the Court's interior. While the STF debates whether its own procedures were instrumentalized, external actors seek to mobilize other legal systems to interfere in the same dispute.
The machinery begins to consume its own authority
By the end of the session, the tribunal had not reached the merits of the possible investigation of Moraes. Before that, it split over a prior question: whether the cases related to Moraes and André Mendonça should be examined jointly or separately.
Edson Fachin proclaimed a provisional 4-to-3 tally in favor of keeping the proceedings separate, with Fachin, Mendonça, Luiz Fux and Cármen Lúcia in that position, while Gilmar Mendes, Moraes and Cristiano Zanin defended consolidation. Flávio Dino, who had indicated a position favorable to joint analysis, requested more time to review the files and interrupted the judgment; his position was left out of the formal tally proclaimed at that moment.
The outcome is revealing because the STF entered the bench to examine a possible investigation and ended without deciding on it. The Court stopped earlier, facing the need to define which procedure it should use to decide about its own procedure.
It is in this circularity that lawfare self-cannibalization becomes visible. The investigation of a Justice produces a controversy about the investigation itself; that controversy generates questions about who conducted it; the questions reach case assignment, impediments, recusals and competence; and the mechanisms created to reorganize the process are, in turn, contested.
Lawfare self-cannibalization, here, does not designate the guilt of one Justice or one group. It describes an institutional dynamic in which procedures designed to check the exercise of power come to be contested, reinterpreted and mobilized by the institution's own members, while the dispute over their legitimacy produces new procedures, new accusations and new zones of conflict.
The institutional risk does not necessarily lie in determining who will win a given procedural question. It lies in the possibility that the system, by successively adjudicating controversies that involve its own members, erodes resources fundamental to its authority, such as public trust, procedural predictability and the capacity to present its decisions as the product of an institution that remains larger than the conflicts existing within it.
Nineteen days before the elections, that erosion is not confined to the judiciary. It immediately enters the electoral dispute and now also feeds international political articulations.
Institutional self-cannibalization begins when the Court stops debating only the process and has to demonstrate that a place still exists sufficiently outside the conflict from which it can judge it.
Cármen Lúcia perhaps offered the most uncomfortable synthesis of the session by acknowledging, from within the Court itself, the malaise produced by what society had just witnessed. The September 15 discussion revealed not only how the STF intends to be seen. It also revealed what happens when the image the institution claims meets, on camera, the image its own dynamics project.