Izzivi prihodnosti / Challenges of the Future,  Članek / Article 
Maj / May 2023, leto / year 8, številka / number 2, str. / pp. 76-104. 
 
* Korespondenčni avtor / Correspondence author 76 
Prejeto: 20. februar 2023; revidirano: 13. april 2023; sprejeto: 17. maj 2023. /  
Received: 20th February 2023; revised: 13th April 2023; accepted: 17th May 2023. 
DOI: 10.37886/ip.2023.004 
 
 
 
Brazilian’s Supreme Court in a Democratic Coup d’état 
 
 
Maurício Sullivan Balhe Guedes
*
 
Federal University of Minas Gerais (UFMG), Belo Horizonte, State of Minas Gerais, Brazil, 
Postal Code: 30130-180,  
mauriciosullivan1@gmail.com 
 
Luisa de Boucherville Ferreira Lombardi 
Pontifical Catholic University of Minas Gerais (PUC/MG), Belo Horizonte, State of Minas 
Gerais, Brazil, Postal Code: 30140-002,  
luisabflombardi@gmail.com  
 
 
Abstract 
Research Question (RQ): Would such attacks on the democratic game be sufficient grounds for restrictive 
decisions made by the court? If so, or if not, what are the resulting effects on the democratic game itself? 
Purpose: Understanding the movements of the Brazilian constitutional court during the 2022 presidential 
elections. 
Method: The measures adopted by the STF are characteristics of what Issacharoff (2015) read as a “fragile 
democracy”, in which the discourse during the electoral process needs to be linked to democratic 
achievement, where everything that contrasts with it is out of the possibility of the exercise of the right, on the 
grounds of guaranteeing the freedom to vote. Challenging the conventional view, Varol (2017) understands 
that there are measures usually used in authoritarian regimes that, sometimes, promote and help to develop 
the democratic game more and better than those typically used by the democratic system itself. The research 
proposes a dialogue between the authors.  
Results: The research is able to demonstrate that, despite having taken authoritarian decisions, the court 
managed to contribute to guaranteeing the normality of the elections. 
Organization: Debating the limits of the court’s action, as well as the legitimacy of its decision-making is a 
key element of the very possibility of the existence of a constitutional state, it impacts the work of judges, 
lawyers, and prosecutors, and allows for better social scrutiny.  
Society: Bolsonarism raised its tone against the court and reinforced questions about the legitimacy of the 
institutions and the voting process. The issue, however, is that Bolsonaro's campaign was largely based on 
fighting a democratically established system, in the same tone in which he attacked the human rights of 
minority groups. Understanding these complex dynamics of power in the social context, the impact on future 
elections, or even the quality of the democracy game is an essential part of the contribution of this work. 
Originality: It is correct to say that Bolsonaro was not able to conceive his re-election bid as he would have 
liked, much of it due to the decision-making expansionism of the STF. The method employed does not 
necessarily see such a situation, even if it is atypical, as negative, as long as it enhances democracy.  
Limitations / further research: This research is limited by its specific temporal scope, unable to accurately 
predict the behavior of the Brazilian Supreme Court beyond the 2022 electoral period. Furthermore, the 
theoretical framework is also insufficient to anticipate or fully represent the nuances of the Brazilian 
democratic system. A research suggestion would be the continuous monitoring of the Supreme Court and its 
decisions regarding fundamental rights, particularly considering the political landscape beyond the studied 
period, to determine whether it was an idiosyncrasy specific to that moment or something that has become 
entrenched in the court's ideology. 
 
Keywords: brazilian’s supreme court, democratic coup d’état, elections, bolsonaro.  

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1 INTRODUCTION 
During the 2022 electoral period in Brazil, the stance taken by the Federal Supreme Court 
(STF) was the subject of intense criticism from supporters of President Bolsonaro who have 
now been defeated in the polls. The court was able to exercise significant control over the 
possibilities of political-electoral discourse through a series of decisions that restricted the 
scope of protection for freedom of expression. Before this, the court tended towards a more 
expansive and comprehensive interpretation of freedoms, however, this changed when the 
current president began attacking the polls and raising doubts about the reliability of the 
electoral process, which prompted the STF to investigate him for “undemocratic acts”. In 
response, Bolsonarism increased its opposition to the court and reinforced questions about the 
legitimacy of the institutions and the voting process, sometimes calling for the military's 
intervention. 
The measures taken by the Brazilian Constitutional Court are indicative of what Issacharoff 
(2015) referred to as a “fragile democracy” in which discourse during the electoral process 
must be aligned with democratic values and anything that contrasts with these values is 
excluded from the realm of exercising rights in the interest of preserving the freedom to vote. 
However, it is worth noting that Bolsonaro's campaign was largely focused on fighting against 
the established democratic system, including the functioning of institutions and the culture of 
corruption, as well as attacking the human rights of minority groups. Based on populist 
narratives, it is correct to say that his re-election bid did not unfold as he had hoped, in part 
due to the expansive decision-making of the Supreme Court. 
Challenging conventional views, Varol (2017) argued that there are measures typically used 
in authoritarian regimes that, under certain circumstances, can promote and enhance the 
democratic process more effectively than measures typically used by democratic systems 
themselves. The research aims to facilitate a dialogue between these authors while 
considering the actions of the Brazilian constitutional court and demonstrates that, despite 
having taken authoritarian decisions, the court was able to contribute to ensuring the normalcy 
of the elections.  
The research presents the positions of former President Bolsonaro throughout his extensive 
political career, including controversial events and statements opposing human rights. When 
he became the president of the republic, he directed his attention to the Federal Supreme 
Court (STF) and its justices, as well as the entire electoral system, to the point where he was 
ultimately prevented from continuing his re-election campaign due to decisions made by the 
Supreme Court. The work then addresses relevant aspects of the democratic process arising 
from the interaction between the court and Bolsonaro and his supporters and concludes with 
considerations regarding the possibilities of a supreme court's actions in cases like Brazil’s. 
 

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2 THEORETICAL FRAMEWORK 
The phenomenon of Bolsonarism cannot be fully comprehended through isolated analysis, as 
it is intertwined with the political history of Latin America and its long-standing relationship 
with authoritarian regimes, as well as the growing trend of flirtation with such regimes 
globally. Bolsonaro holds a Bachelor's Degree in Physical Education from the Brazilian Army 
and a Master's Degree from the Rio de Janeiro’s Parachute Brigade. He held the rank of 
Captain in the 8th Campaign Artillery Group during his tenure in the military. However, he 
was apprehended for contravening army disciplinary regulations. Specifically, he published 
an article titled “The Salary is Down”, in which he censured his remuneration and intimated 
that it could have been a contributing factor to certain dismissals, as opposed to the supposed 
wrongdoing by the army leadership. Consequently, he was sentenced to a term of 15 days in 
jail (InfoMoney, 2022). Another significant infraction was Bolsonaro's and his associates' 
plan to bomb units at Vila Militar, the Military Academy of the Black Needles, and other 
locations if their salary adjustment was less than 60%. Despite substantial evidence linking 
him to the plan and the conclusion of an army investigation that led to his exclusion from the 
military, Bolsonaro was acquitted by the Superior Military Court (STM) in 1988 due to 
procedural deficiencies (FGV, 2019). 
His political career began in 1988 when he became a reserve officer with the rank of Captain 
and was elected to the Rio de Janeiro Municipal Chamber as a member of the Christian 
Democratic Party (PDC). He concluded his term when he was elected as a federal deputy in 
1990. In 1993, he established the Progressive Reformist Party (PPR), which later merged with 
the Progressive Party (PP) to become the Brazilian Progressive Party (PPB). During the same 
year, he caused bewilderment in the National Congress by advocating for a state of 
emergency and the closure of the National Congress, and he repeated this position the 
following year when he was reelected (FGV, 2019). 
In 1998, he ran for the position of President of the House of Representatives Human Rights 
Commission, a decision that sparked controversy due to his views, which were not in line 
with the commission's objectives, including support for the death penalty, life imprisonment, 
birth control as a solution to poverty and violence, revision of indigenous lands, etc. In 
August 1999, after being reelected, Bolsonaro was accused of nepotism for employing his 
then-girlfriend, father-in-law, and cousin in his office. He defended himself by claiming that 
he was not married to her. In December of the same year, he even advocated for the shooting 
of then-President Fernando Henrique Cardoso (FGV, 2019). In 2000, he supported the death 
penalty for premeditated crimes and the use of torture in drug trafficking and kidnapping 
cases. 
In 2005, the mensalão scandal brought some notoriety to Bolsonaro as he criticized the 
Workers' Party (PT) and the politicians involved in the corruption scheme. Initially, 
Bolsonaro was a declared supporter of former President Lula and a backer of his 

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administration during his first term. However, he soon began to have political disagreements 
with Lula, and this tension only escalated over time. 
Although Bolsonaro was the 11th most voted federal deputy in Rio de Janeiro during his fifth 
re-election, he only received 9 votes in a bid to become the president of the Chamber of 
Deputies. In 2011, he referred to an educational material produced by the Ministry of 
Education to combat homophobia as a “gay kit”. The same year, while Senator Marta Suplicy 
was being interviewed about a bill aimed at making homophobia a crime, Bolsonaro 
positioned himself at the back with a flyer that accused the government of promoting 
homosexuality in schools. When approached by another parliamentarian, he accused her of 
being “heterophobic”. In 2014, he claimed that Brazilians do not like homosexuals and that 
they were a result of drug use, or were born with a “factory defect” (FGV, 2019). 
During his seven-term tenure as a deputy, Bolsonaro: voted in support of the impeachment of 
former Presidents Fernando Collor and Dilma Rousseff; voted in favor of ending the state 
monopoly in the distribution of piped gas, telecommunications, and oil exploration sectors; 
opposed the opening of cabotage navigation to foreign vessels, the Provisional Contribution 
on Financial Movement (CPMF), and the provisions of the 1999 pension reform; was the sole 
deputy to vote against the creation of the Anti-Poverty Fund, which is funded by the CPMF; 
and opposed the disarmament campaign that was put to a popular vote (FGV, 2019). 
The absence of civility and a lack of proper etiquette were defining characteristics of his 
political career. In 2000, he insulted the then-appointed Defense Minister, Geraldo Quintão, 
calling him “incompetent”, “disreputable” and “immoral”. In 2006, he referred to Defense 
Minister Tarso Genro as a “terrorist” and a “liar”. In 2011, he made a derogatory remark 
about Deputy Jean Willys' sexual orientation, saying he “would not be proud to have a son 
like him” (FGV, 2019). In 2014, during a discussion on the age of criminal responsibility, 
after being referred to as a rapist by Deputy Maria do Rosário, he retorted by saying “I would 
never rape you ‘cause you’re not worth it” (Alter, 2014).  
Despite serving 27 years as a member of the Chamber of Deputies, Bolsonaro only succeeded 
in passing two out of the 171 bill proposals he presented. 
In 2018, Jair Messias Bolsonaro sought to run for the presidency of the republic and joined 
the Social Liberal Party (PSL). During his political campaign, Bolsonaro advocated for the 
right to bear arms, the legalization of gold mining, the privatization of state-owned 
companies, the adoption of a capitalization system for social security, the elimination of “fine 
industry”, referring to regulatory bodies, and the opposition to gender ideology. During a 
campaign event in Juiz de Fora, Minas Gerais, Bolsonaro suffered a serious stabbing incident 
in the lower abdomen that required hospitalization and several surgical procedures, which 
temporarily disrupted his campaign. In the end, Bolsonaro was elected president with 55% of 
valid votes in the second round. (FGV, 2019). 

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Upon assuming office, the president encountered challenges in maintaining stability within 
his administration. Several of his ministers, including the former federal judge and Minister of 
Justice, Sérgio Moro, resigned from their positions. Moro was a prominent figure in the 
president's political campaign, particularly regarding his efforts to combat corruption, but his 
resignation was due to allegations of the president's interference in the Federal Police and 
ongoing investigations (FGV, 2019). 
The origin of the Jair Bolsonaro phenomenon can be traced to the political representation 
crisis that Brazil is currently facing. The recent history of the country can be summarized as 
follows: After a period of economic growth and reduction of poverty during the first two 
terms of President Lula, disappointment set in quickly due to the subsequent scandals, which 
led many Brazilians to lose faith in the government and the Workers' Party (PT). This resulted 
in a polarized political landscape, marked by anti-corruption demonstrations in 2013 and 
Operation Car Wash in 2014. This tension was further heightened by the rise of Bolsonarism, 
with many people supporting him even if they did not agree with his other policies, due to his 
stance against corruption and the anti-Workers' Party sentiment. 
The demonization of the Workers' Party, which functioned as a unifying element for the masses 
in the last election, led to the feeling that what the Workers' Party produced in government was 
bad, or more precisely, that the movements directed towards democratization were misguided or 
even attacks on the Brazilian family (Casara, 2020, pp. 98-99).  
In this scenario, there was a sense of disbelief in the Brazilian Supreme Court, when the 
nullification of the Car Wash proceedings resulted in the release of former President Lula, 
leading many Brazilians to feel a sense of impunity and a disconnect with the concept of 
representation. The anti-corruption discourse served as a rallying point, reinforcing the 
narrative against the institutions of Brazilian democracy and targeting the Supreme Court. 
The central aspect of the anti-democratic discourse is its emotional appeal, attracting those 
who have lost faith in the political system, empowering irrationality, and fueling numerous 
radical demonstrations: 
As the perception of corruption increases in the state due to the colonization of representative 
democracy by the economy, so does the popular appeal for measures to eliminate corruption. 
The commodity of 'anti-corruption' has captive consumers, a public that has been conditioned to 
applaud any act that claims to be 'against corruption,' even if it is ineffective or draconian 
(Casara, 2020, p. 55). 
It is through the perception of the military as heroic, a symbol of breaking away from the 
establishment, that the image of “myth” emerges and becomes a hallmark of the subversion of 
the state embodied by Jair Messias Bolsonaro. In a ripple effect, upon realizing that he had 
support, he radicalized and broadened his discourse:  
Bolsonaro's campaign was based on a fantasy, where he would be the character responsible for 
realizing the childish desires of his voters. Fantasy, by definition, is a substitute for reality. 
Bolsonaro was the old presented as new, the insubordinate military who was sold to the 

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electorate as a defender of order, etc. Produced as a commodity, candidate Bolsonaro was 
presented, especially to the younger ones, as pure positivity (Casara, 2020, p. 204).  
The image of myth was reinforced in events organized (or at least attempts at events) by the 
former president. In the early days of his administration in 2019, plans were made to celebrate 
the 55th anniversary of the establishment of the Military Dictatorship (1964-1985), however, 
these plans were prevented by the judiciary. In 2021, a parade was held featuring 150 vehicles 
from the Brazilian Navy in an attempt to bolster the former president’s image through military 
symbols. The effort to politicize the armed forces was a distinct endeavor during the 
Bolsonaro government, but not always successful. For example, in March 2021, the 
commanding officers of the Army, Navy, and Air Force were jointly dismissed following the 
departure of the defense minister due to dissatisfaction with the political shift of the forces 
and suggestions of a possible alliance with the government in support of military intervention. 
Based on a highly conservative agenda, former President Jair Messias Bolsonaro consistently 
engaged his voters by promoting the protection of traditional Brazilian families, speaking out 
against homosexuality and abortion, emphasizing religion, and advocating for the 
establishment of a military regime as the new political order in Brazil. By incorporating 
religious themes into his political discourse, he particularly appealed to the Evangelical 
electorate, using the slogan in his presidential campaign, “Brazil Above All, God Above 
Everyone”. Bolsonaro's often-provocative speeches created a platform for events such as 
motorcycle rides and photographs making gun symbols, including with children present. 
The construction of Bolsonaro’s political image was marked by the idea of a myth, which 
occupied a prominent place in the perception of part of his electorate. Some of his supporters 
viewed him as an extraordinary character with heroic touches, embodying exceptional powers 
(Casara, 2020, p. 204). The Bolsonarist slogan “God, Fatherland, and Family”, although 
appearing to be merely conservative, was actually created and widely used by the Brazilian 
fascist movement Ação Integralista Brasileira (AIB), founded and led by Plínio Salgado in 
1932, inspired by Mussolini’s Italian fascism :  
On October 7, 1932, the Brazilian Integralist Action (AIB) launched a manifesto in which it 
advocated for the Christian character of Brazilian society as the guiding political principle of the 
nation. The manifesto begins with (...): "God directs the destiny of peoples". Throughout the 
text, the supernatural Christian force is repeatedly praised as the doctrine to be followed to 
achieve an ideal model of family, society, and a supposed indivisibility of classes, and thus 
economic and social functioning. As put by the AIB, this "deeply Brazilian thought" comes 
from "the Christian roots of our History": this is the meaning of the integralist program for a 
univocal model of fatherland, which came to be synthesized in the slogan "God, Fatherland and 
Family" (Almeida, 2022).  
In his writing, Almeida (2022) delves into the underlying meaning of the slogan “God, 
Fatherland, and Family”. He argues that the usage of the Christian Orthodox religion and its 
values as a way to determine social order and values is evident, creating an imbalanced 

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relationship between the speaker, the representative, and the listener, where the former is seen 
as connected to the divine and should not be questioned, fostering a vertical and authoritative 
discourse. The inclusion of “God” in the Bolsonarist slogan aligns Bolsonaro with the image 
of a myth, of the savior of traditional Brazilian family values and the hero of the homeland 
who will protect the nation from “Communist” threats. 
However, Bolsonaro’s image is not solely based on the fascist slogan. The members of AIB 
were known for their green shirts, and Bolsonarist supporters have adopted the colors green 
and yellow as a uniform for the movement, by using the famous shirt worn by the Brazilian 
football team and fans. This appropriation of the patriotic feeling that connects the Brazilian 
people to their passion for sports further strengthens Bolsonaro’s image. 
In 2018, when Bolsonaro was elected, it was already possible to anticipate what was to come. 
Even before significant popular discontent with the direction of Brazilian politics, the then-
deputy had already expressed anti-democratic beliefs without hesitation. For example, in a 
1999 interview with Rede Bandeirantes, when asked if he would close the National Congress, 
he replied, “There is no doubt. I would stage a coup on the same day. It doesn't work! And I'm 
sure that at least 90% of the population would celebrate and clap. The Congress today is good 
for nothing, buddy. It only votes for what the president wants. If he is the person who decides, 
who commands, who tramples on Congress, then give the coup and move on to dictatorship”. 
At the time, this response did not cause much concern, as the idea of a coup seemed far-
fetched, and few people knew who the deputy was, much less the anti-democratic views he 
had proclaimed (Oyama, 2020, p. 64). 
Bolsonaro’s notoriety gradually increased, largely due to his actions lacking parliamentary 
decorum, which, amidst one controversy after another, began to draw attention. One of the 
many atrocities he committed was invoking the name of Carlos Brilhante Ustra, who was 
notorious for torturing prisoners during the military dictatorship when voting in favor of the 
impeachment of Dilma Rousseff, who had also been arrested and tortured during that regime: 
“For the memory of Colonel Carlos Brilhante Ustra, the fear of Dilma Rousseff” (Souza, 
2022, p. 93). 
It can be argued that the pinnacle of Bolsonaro's political trajectory occurred during his 2018 
election campaign, during which his popularity grew exponentially. There are two crucial 
elements to understanding the phenomenon known as “bolsonarism”: the first, is the 
dissatisfaction of many Brazilians with the exposure of various corruption schemes through 
Operation Car Wash; the second is the growth of conservative, often radical rhetoric that 
pointed to a new military dictatorship as the solution to a variety of problems plaguing Brazil. 
Even after being elected, the then-president did not waste time criticizing the electoral system, 
which he repeatedly claimed was susceptible to fraud, despite never presenting any evidence 
to support his allegations. 

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In 2019, commenting on the situation in Bolivia, President Bolsonaro tweeted: “The 
allegations of election fraud that led to the resignation of President Evo Morales serve as a 
reminder of the importance of ensuring democracy and transparency through auditable vote 
counts. PRINTED VOTE is the key to a clear and fair election process in Brazil!” (Folha de 
São Paulo, 2023). During a live broadcast on his Instagram, he stated: “Many people believed 
that I was going to win the election by a landslide, but in the end, the results were 55% for me 
and 45% for the other candidate. What if the outcome had been different? How would we 
have been able to audit those votes? This is why we need to adopt a secure voting system in 
Brazil to prevent manipulation and fraud” (Folha de São Paulo, 2023). 
In 2020, President Bolsonaro claimed to have evidence of election fraud: “I have in my 
possession evidence that I was elected in the first round, but I believe that there was fraud 
involved. I will soon be presenting this evidence to show why we need to adopt a secure 
voting system in Brazil to prevent manipulation and fraud”. (Folha de São Paulo, 2023). 
However, no evidence was ever provided to support these claims, and in November 2022, the 
Brazilian Armed Forces released a report on the electronic voting machine process to the 
Superior Electoral Court (TSE), which found no irregularities, only excuses such as lack of 
data and technical clarification, and the complexity of the voting system. 
In 2021, the tone escalated, and subtle threats, offenses, and attacks against representatives of 
the Federal Supreme Court (STF) and some other democratic institutions began. When 
commenting on the invasion of the U.S. Capitol, Bolsonaro stated: “If we don't have the 
printed vote by ’22…a way to audit the vote, we will have a worse problem than the United 
States” (Folha de São Paulo, 2023). And: “Only in fraud the nine fingers return. Now, if 
Congress promulgates, we will have printed voting. It won't be a pen stroke from a citizen like 
this one, who won't have printed voting. You can forget that” (Folha de São Paulo 2023). In 
an interview with a radio station, also in the same year, he claimed: “They will find problems 
for next year. If this method continues here, without even public counting, they will have 
problems. Because one side may not accept the result. This one side is our side, may not 
accept the result” (Folha de São Paulo, 2023). 
In the same year, in front of the Alvorada Palace, Bolsonaro said: “The fraud is at the TSE, 
without a doubt (...). I am not afraid of elections, I hand over the band to whoever wins, in the 
auditable and trustworthy vote. In this way, we run the risk of not having elections next year” 
(Folha de São Paulo, 2023). During a live stream on his social media, in which he had 
promised to present evidence of his allegations, the President dodged and claimed: “It is not 
possible to prove that the elections were not or were fraudulent. They are indications. Crime 
is revealed with many indications” (Folha de São Paulo, 2023). At a later point, Bolsonaro, 
also in a live stream, backed down and stated: “The election system is unauditable. It is not 
possible to compar e i f t h e r e w a s or was not fraud in the elections” (Angelo & Fagundes, 
2021). In 2022, the election year, Bolsonaro, in an interview with SBT, stated that: “From my 
travels around the country, especially in the last two months, if we do not win in the first 
round, something abnormal happened inside the TSE (Superior Electoral Court)” (Correio 

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Braziliense, 2022). Similarly, on January 10th, 2023, two days after the Bolsonarist protesters 
invaded the headquarters of the Three Powers, causing the destruction of public property in 
the Executive, Judiciary, and Legislative branches, Bolsonaro posted a video on his Twitter 
account that claimed election fraud with the caption: “Lula was not elected by the people, he 
was chosen and elected by the STF and TSE” (Vasconcelos, 2023). Later, the video was 
deleted. On March 31st, 2022, during a ceremony at the Planalto Palace, Bolsonaro made the 
statement: “What would Brazil be without the contributions of the military government? It 
would be nothing! We would be a small republic...” (Valadares & Schuch, 2022). 
The attacks were not limited to the Brazilian electoral system, as the Supreme Federal Court 
was also subjected to hate and misinformation. The relationship between then-President 
Bolsonaro and the court became strained as a result of Bolsonaro’s attacks on the election 
process and the developments in the Fake News Investigation. This is an inquiry that was 
initiated by the Supreme Federal Tribunal, commonly referred to as the “Inquiry of the End of 
the World”. The primary objective of this investigation was to scrutinize the propagation of 
misinformation regarding Supreme Court justices and their families, as well as the disclosure 
of their personal information and threats against them. Additionally, the inquiry sought to 
uncover the existence of the so-called Hate Bureau, a scheme within the National Congress 
that was created to fund and disseminate fake news. As a consequence of the inquiry, two 
federal deputies, Daniel Silveira, and Roberto Jefferson were apprehended. The latter, in 
response to his preventive arrest, fired shots from an assault rifle when confronted by the 
federal police. 
The investigation involved the breaking of confidentiality and the search and seizure of 
several Bolsonaro-aligned lawmakers suspected of being involved in a massive fake news 
dissemination scheme. In June 2020, during a conversation with his supporters, Bolsonaro 
stated, “I won't be the first to go. They are overstepping their bounds, and that is clear. The 
breaking of parliamentary confidentiality that happened yesterday and today has no parallel in 
democratic history, no matter how fragile it may be. The time has come for everything to be 
put in its proper place”. (UOL, 2020) 
In response to the Justice of the STF Luís Roberto Barroso, who criticized him for his 
controversial speeches, the former president replied: “The response is from an individual 
lacking intelligence. I regret making such a statement about the authority of the Supreme 
Federal Court. Only a foolish person would do so. Our future and livelihood are at stake and a 
person cannot seek to determine the future of Brazil through fraud”, and later in the following 
month, he stated: “That individual (...) is targeting me. That individual is Barroso”. (Peixoto, 
2021). The climax of the personal attacks on justice occurred in August 2021, when 
Bolsonaro linked him to pedophilia: “I did not insult any minister, I simply spoke about Mr. 
Barroso’s record. Advocating for abortion, drug legalization, and reducing the age for sexual 
abuse of vulnerable persons. He wants our daughters and granddaughters of 12 years to 
engage in sexual relationships without any issue” (Carta Capital, 2021).  

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Amid the numerous attacks, the most insulting ones were directed at Justice Alexandre de 
Moraes. In September 2021, Bolsonaro proclaimed: “This President will no longer comply 
with any decision made by Mr. Alexandre de Moraes” (Ferraz, 2021). He later added: 
“There's still time for him to submit his inquiries, or better yet, his time is up. Get out, 
Alexandre de Moraes. Stop being a rogue” (Mendonça & Peixoto, 2021). The following year, 
Bolsonaro publicly challenged the justice, stating: “A few weeks ago, Alexandre de Moraes 
said that anyone who distrusts the election process would be impeached and arrested. Oh, 
Alexandre, I am suspicious. Will you arrest me? Will you revoke my registration? What kind 
of democracy is this? We can distrust everything, and when we distrust, we are perfect” 
(Ferraz, 2021).  Later that same month, the former president made another statement: “And 
then Alexandre de Moraes comes with these low-downs, breaking the confidentiality of my 
order aide. It was my confidentiality that was broken, Alexandre. That's not a man's role, it's a 
child's (...) Stop being a rogue, Alexandre de Moraes, a rogue (...) cheeky (...) Be a man once 
in your life” (Porcella, 2022). 
The Federal Supreme Court did not remain passive in the face of Bolsonaro’s attacks on 
various democratic institutions in Brazil, particularly his attacks on the court itself, which 
called into question its legitimacy and competence, and the moral integrity of its justices. The 
actions taken by the STF during Bolsonaro’s presidency, particularly during the election 
period, have been the subject of intense controversy, criticism, and debate. 
One of the initial decisions that caused friction between the former president and the Supreme 
Court was in 2020 when the appointment of Alexandre Ramagem as the director-general of 
the Federal Police was suspended, pending a decision based on non-compliance with the 
constitutional principles of impartiality, morality, and public interest (MS 37097). This 
decision was in response to accusations by the former Minister of Justice, Sérgio Moro, of 
Bolsonaro's interference with the police, which was being investigated by the Supreme Court. 
During the COVID-19 pandemic, the tensions were further escalated by the measures taken 
by the former president, such as vetoing the publication of patient data, suspending provisions 
of a Provisional Measure that did not consider COVID-19 infection in the workplace as an 
occupational disease, recognizing the autonomy of states and municipalities to maintain 
isolation and determining concurrent competence for federal entities to adopt COVID-19 
combat measures (ADI 6341), as Bolsonaro only supported vertical isolation, prohibiting the 
“Brazil Cannot Stop” campaign that advocated against isolation (ADPF 668), and opening an 
investigation against the then-president for associating the COVID-19 vaccination with the 
risk of developing AIDS. 
The Supreme Court also suspended parts of decrees aimed at expanding the carrying of 
weapons, one of Bolsonaro's most strongly held positions, declared a Provisional Measure 
that made changes to the Access to Information Law unconstitutional (ADI 6351), and 
suspended the expulsion of employees from the Venezuelan Embassy (HC 184.828). 

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Among various legal disputes, it can be stated that the ring of the greatest confrontation 
between the justices of the Brazilian Supreme Court and the former president was the 
aforementioned Fake News Inquiry, which placed its reporter at the center and symbol of the 
conflicts, Justice Alexandre de Moraes. One of the most controversial aspects of this inquiry 
lies in the fact that its initiation was carried out ex officio by the Brazilian constitutional court, 
based on its internal regulations that allow such a situation when investigating crimes against 
the court itself. With the inclusion of the former president in the inquiry, he was investigated 
for the following crimes:  
- libel; 
- slander;  
- injury;  
- incitement to crime;  
- advocacy of crime;  
- criminal association;  
- malicious prosecution; attempting to change, with the use of violence or serious threat, 
the order, the prevailing regime or the rule of law;  
- publicly advocating violent or illegal processes to change the political or social order, 
etc.  
In addition to launching new attacks on the STF and its justices, Bolsonaro appealed the 
decision and filed an Action Against a Violation of a Constitutional Fundamental Right 
(ADPF), challenging the opening of the inquiry, the lack of exceptionality for such, and 
interposing various appeals. 
It is noteworthy to mention certain actions resulting from the Fake News Inquiry, which were 
perceived by the former president and his supporters as personal persecution. These actions 
include the decision to block profiles on social media associated with the former president, 
which was criticized as censorship against those who oppose the court; the decision to shut 
down websites that propagated extreme views such as the closure of the National Congress 
and the Supreme Federal Court, seen as a violation of freedom of expression; and the 
violation of confidentiality of parliamentarians who support the former president, among 
others.  
Another controversial moment of direct friction between the supreme court and Bolsonaro 
was the imprisonment of Deputy Daniel Silveira, who had been sentenced to 8 years in prison 
due to the Deputy's demonstrations for the closing of the National Congress and the STF, as 
well as for recording videos on his social media inciting a coup d'etat. It is worth noting that 
one of the most emblematic issues surrounding Daniel Silveira's arrest is that it was 
determined ex-officio by Minister Alexandre de Moraes, after the posting of a video 
criticizing STF ministers and supporting the Institutional Act No. 5 (AI-5). In response to the 
act which can be seen as tyrannical, since it was not provoked by a competent body (Judicial 
Police or Federal Public Prosecutor’s Office), Silveira received a pardon from the former 
President almost instantly. 

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In 2021, the Superior Electoral Court (TSE), approved the initiation of an inquiry into former 
President Bolsonaro regarding allegations of attacks on the Brazilian electoral system and 
electronic voting machines. The investigation was initiated to examine several charges against 
the former President, including libel, defamation, incitement to crime, criminal association, 
malicious prosecution, and violations of the National Security Law and the Electoral Code. 
The inquiry was conducted in conjunction with the Fake News Inquiry, with Alexandre de 
Moraes serving as the rapporteur, who had already become one of Bolsonaro’s main 
adversaries at the time. 
In response to the investigation, Bolsonaro stated that “His time will come. Because he has 
been playing outside the boundaries of the Constitution for a long time. I do not intend to 
leave the boundaries to question these authorities, but I believe that the moment is coming” 
(Folha de São Paulo, 2023). 
In August 2021, Bolsonaro became the subject of another investigation, this time for his 
attacks on the credibility of the voting machines and the spread of false information and 
offenses against democratic institutions. In response, Bolsonaro stated that: “I am President 
24 hours a day. My game is within the boundaries, but if I leave the boundaries, I am forced 
to leave the boundaries. It's like Alexandre de Moraes’s inquiry: he investigates, he punishes, 
and he imprisons. If I lose, will I appeal to the TSE itself? That doesn't make any sense” 
(Folha de São Paulo, 2023). 
The TSE’s actions during the 2022 election campaign dealt a fatal blow to Bolsonarism. For 
example, the airing of a documentary about Jair Messias Bolsonaro’s knife attack was 
suspended, the analogy between former President Lula as the mastermind behind the murder 
of leftist Celso Daniel was prohibited, the use of images of a speech given by Jair Bolsonaro 
in London during his election campaign was prohibited, and the use of images of September 7 
celebrations was also prohibited. Additionally, the TSE reduced the television network 
election campaign by 10 minutes to allow for Lula to have more airtime, after Bolsonaro 
made false accusations about his opponent. These measures, among others, were viewed by 
Bolsonaro and his supporters as an imbalance in the elections in favor of the other candidate 
and a violation of the Right to Reply (Abramo, 2022). 
The stance of the Brazilian Federal Supreme Court (STF), during the 2022 electoral period, 
was heavily criticized by supporters, now defeated at the polls, of President Bolsonaro. From 
a block of decisions, the court was able to control the possibilities of political-electoral 
discourse, restricting the scope of protection of freedom of expression. The turning point in 
the institutional behavior took place when the current president began to attack the polls and 
put in check the reliability of the electoral process, a reason that proved to be sufficient for the 
STF to investigate him for “undemocratic acts”. The RQ is: Would such attacks on the 
democratic game be sufficient grounds for restrictive decisions made by the court? If so, or if 
not, what are the resulting effects on the democratic game itself? 

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3 METHOD 
The measures implemented by the STF align with the concept of a “fragile democracy” as 
described by Issacharoff (2015). According to this perspective, in a fragile democracy, the 
discourse during the electoral process must be connected to democratic progress. Anything 
that contradicts this notion is deemed incompatible with the exercise of the right to vote, as it 
aims to ensure freedom in the electoral process. In contrast to the conventional view, Varol 
(2017) argues that there are measures commonly employed in authoritarian regimes that, at 
times, foster and enhance the democratic game more effectively than those typically used by 
democratic systems themselves. This research aims to facilitate a dialogue between these two 
authors. 
Thus far, this work has constructed a narrative that, to a greater or lesser extent, attempts to 
demonstrate the necessary nuances for understanding the historical context that informs its 
conclusions. In line with what Burke (1993, p. 28) would refer to as a “model of a model”, it 
presents a complex syncretic narrative aimed at enabling diverse conclusions regarding the 
elements contained within it. It is a retrospective examination that considers present 
challenges to establishing a model for envisioning the future. Burke identifies this as the 
method of historical-cultural revision, which allows for a (re)interpretation of knowledge to 
simplify reality – a structured model of what is real. The outcome of this approach is a micro-
model of the constructed reality. The proposed dialogue between the ideas of Issacharoff 
(2015) and Varol (2017) only makes sense when considered within the framework of the 
preceding narrative model. Therefore, they are constrained by the reality that the narrative 
seeks to induce (based on the narrative constructed thus far) and the deductions derived from 
the authors' literature review. 
 
Figure 1. Research model 

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4 RESULTS 
The research explores the impact of the decision-making expansionism of the Federal 
Supreme Court (STF) on the re-election bid of Bolsonaro. The approach employed does not 
view this situation as necessarily negative, as long as it strengthens democracy. The measures 
taken by the STF are a hallmark of what is referred to as a “fragile democracy” by Issacharoff 
(2015), where the discourse during the electoral process must be aligned with democratic 
values, and any deviation from this is deemed unacceptable for the exercise of the right to free 
speech. However, Varol (2017) challenges this conventional view and argues that sometimes 
measures typically employed in authoritarian regimes can better promote and develop 
democracy than those used by democratic systems.  
Although it is possible to conclude from the reading of Issacharoff and Varol that there may 
be moments when a country's supreme court should or must intervene to defend the 
democratic game, it is not clear that such circumstances were present in the Brazilian case, 
even with the attacks by Bolsonaro and his supporters on the electoral system or the 
democratic governance. It is necessary for the court to maintain a pacifying tone and to ensure 
parity and equality among competitors, especially during the second round when the choices 
are limited to only two candidates. Otherwise, the court, which should act as the guardian of 
the constitutional text, risks violating the constitution itself by indirectly favouring the 
campaign of one candidate over another. 
The research aims to initiate a dialogue between these two perspectives. The findings suggest 
that despite the STF taking authoritarian decisions, it was able to contribute to the 
normalization of the elections. Bolsonaro’s campaign, which was largely based on 
challenging the democratic system and attacking the human rights of minority groups, raised 
concerns about the legitimacy of institutions and the voting process. Further research is 
needed to fully understand the complex dynamics of power in the social context and the 
impact on future elections and the quality of democracy. The study is limited in that it only 
focuses on the Brazilian’s 2022 elections and does not take into account past events. 
5 DISCUSSION 
The Brazilian Constitution of 1988 established a new system that disregarded the country's 
constitutional history and relegated it to being unreliable (Barroso, 2012, p. 111). The idea of 
effectiveness argues that there is a tradition of ineffectiveness in the Brazilian constitutions, 
resulting from the flaws of the elites, leading to a lack of trust in norms (Bonavides & 
Andrade, 1991, p. 12). To address this issue, a new model of constitutionalism was 
introduced, which gave a lot of power to the Supreme Court. The court was meant to play a 
significant role in politics and law and be seen as the guardian of democracy. However, this 
decision was made for political reasons and ignored that many of the political and legal 
institutions had already existed in previous constitutions. There is debate about whether there 
is an ineffectual constitutional order or if it's just some provisions that are less effective 
(Lynch & Mendonça, 2017). 

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Thirty-five years later, the Brazilian Constitution that was meant to be effective is facing 
questions about its efficiency and legitimacy. The “emancipatory” order appears to be 
repeating history by becoming a mere tool for domination and formal legitimization of the 
arbitrary will of those in power. Brazilian’s Federal Supreme Court Justice, Luís Roberto 
Barroso (2008, pp. 327-329), advocates that:  
Brazil's political and constitutional experience, from independence to 1988, is the me lancholic 
history of a country's misalignment with its people and destiny. Almost two centuries of 
persistent illegitimate power, lack of effectiveness of multiple Constitutions, and an endless 
succession of violations of constitutional legality. An accumulation of lost generations. The 
ancestral illegitimacy materialized in the domination of a narrow-sighted, patrimonialism elite 
that never had a country project for everyone. (...) The lack of effectiveness of successive 
Brazilian constitutions resulted from the non-recognition of normative force to their texts and 
the lack of political will to give them direct and immediate current applicability. The European 
tradition of the first half of the century prevailed among us, which saw the fundamental law as 
merely an ordering of action programs, calls to the ordinary legislator, and public powers in 
general. Hence, the Brazilian Charters have always allowed themselves to be inflated by 
promises of action and pretended rights that never came to fruition in practice. A history marked 
by insincerity and frustration. Disrespect for constitutional legality accompanied the Brazilian 
political evolution like a curse (...). Intolerance, immaturity, and social insensitivity defeat the 
Constitution. A country that didn't work out. The 1988 Constitution was the zero milestones of a 
restart, from the perspective of a new history. 
Barroso (2012, p. 57-58) raises the expectation of a “new history” by asking "Why not a 
constitution 'to be effective'?" His original publication in 1987 helped to establish the 
Brazilian doctrine of effectiveness, which represented a change in mentality toward the role of 
the Constitution. It helped to address the chronic problems of Brazilian constitutionalism, 
such as the lack of trust in norms, ideological mystification, and neglect by the public powers. 
In the words of Barroso (2012, p. 58):  
After denouncing the chronic lack of real compliance with constitutional norms, and seeking to 
overcome it, the article elaborates on the concept of effectiveness and formulates a classification 
for constitutional norms (...). This text was one of the pioneers in defending the ascent and 
centrality of the Judiciary in the protection and realization of the Constitution (...). The conquest 
of effectiveness by constitutional norms was the rite of passage to the material and axiological 
supremacy of the Constitution, which opened the way for democratic constitutionalism in the 
country. 
The process that resulted in the constitutional text of 1988 cannot be solely attributed to 
popular forces, as they were not organized or capable of exerting this type of pressure (Sodré, 
1984, p. 131). However, participation from civil society gradually increased and became 
relevant in the political process after the opening (Barbosa, 2012, p. 145). The constitution 
emerged from a process with significant popular participation, broke with the past, and 
brought together diverse political and ideological forces into a reasonably advanced text. 

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Neglecting the past, however, is a thankless task: it implies renouncing one's own identity to 
emptiness (Burke and Stets, 2009, pp. 112 et seq.) - worse, it means not learning from its 
lessons (Burke, 2000, pp. 70 et seq.). The Brazilian doctrine of effectiveness ignores that a 
Constitution distorted from the historical and democratic constitutionalism is a mere fantasy 
of normativity - it contributes to a symbol of organized power, with low legitimacy and 
deficient social participation: “it is not the monologue from the top or the political-strategic 
agreements that shape constitutionalism and affirm democracy” (Benvindo, 2014), it is the 
social experience that builds the law and the interpretation that it must be given, it is 
necessary to live the Constitution. 
The “approach of constitutionalism from Latin American constitutional sociology aims to 
critically investigate its development, not in its normative sense, but as it faces political and 
social challenges” (Vieira, 2016). Whereas before the issue of the narrative of the failure of 
Brazilian constitutionalism was focused on a “non-effective” constitutional order, the 1988 
Constitution resolves this formally by enhancing the functions and competencies of the 
Judiciary - the protagonism would be based on the “inexorability of fundamental rights, which 
are not exhausted in the constitutional text, and on the sophistication of the instruments of 
constitutional control and constitutional process” (Moreira & Da Escossia, 2016). 
In the Brazilian system, the judiciary has become a crucial component in ensuring the 
legitimacy and effectiveness of the constitutional text. The Brazilian constitution, crafted in 
1988, prioritized the role of the judiciary in enforcing the constitution and safeguarding 
fundamental rights. However, it is important to note that the constitution was written by a 
third of the senators who were not elected, with strong influence from conservative business 
sectors, and its language was designed to avoid conflict (Aráujo & Maués, 2016).  
The rise of the judiciary as a key player in constitutional systems is not unique to Brazil and 
can be seen globally. The concept of judicial review, where the judiciary has the power to 
review and potentially strike down legislation that is deemed unconstitutional, has become the 
dominant model in many countries in the past century. This trend is a result of the recent 
wave of democratization and can be observed in the creation of constitutional courts or the 
expansion of existing ones in many countries. 
The post-World War II era inaugurated, in the Western world, a second wave of 
democratization (Huntington, 1991, pp. 579-616), with a liberal bias, with political-social 
sentiments that favored democratic quality and the majoritarian political game, while at the 
same time allowing for the coexistence and strengthening of the participation and 
safeguarding of the fundamental rights of minority groups in institutionalized desires, in the 
paths of the state. Just like the first, once imagined as consolidated, a process of 
deconstruction of political gains was perceived, as well as a mischaracterization of the 
systems of government or the quality of the power political game for authoritarian or low 
popular participation regimes, such as military coups in Latin America or the suffocating 
context of the Cold War (1947-1991). 

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The Carnation Revolution (April 25, 1974) in Portugal marked the start of the third wave of 
democratization (Huntington, 1991, pp. 579-616), which influenced the political and 
ideological turning point in various parts of the world, from then-called Eastern Europe to 
countries such as Argentina (1994 constitutional reform), Chile (1990), and Brazil (1985, 
resulting in the 1988 Constitution), with transformative effects on diplomatic, commercial, 
and cultural relationships in the most influential and stable process of reshaping the world's 
power order. Countries that remained aloof from its foundational cornerstone (democracy as a 
system of government) were left on the margins of subsequent and frequent technological, 
political-legal, socio-economic innovation processes, etc. 
The impacts resulting from September 11, with subsequent and ongoing upheavals in the 
Middle East dominated by ideologies and practices contrary to human rights, as universalized 
by the West, posed the first challenges to the democratic paths of the third wave in the 21st 
century. However, nothing was as severe from a political-ideological perspective as the rise of 
conservatism in the 2010s, a phenomenon observable from one of the intrinsic virtues of the 
democratic model, the vote. Ultra-right populists, ultra-conservative groups that, by preaching 
easy solutions with outrageous rhetoric, to complex economic issues or the reordering of 
social customs, were able to garner considerable and relevant popular support, while 
conquering power, especially in the executive and legislative branches typically elected by the 
majority logic. 
Many thinkers have reached the same conclusion: “something is happening” (Przeworski, 
2019, p. 12), some previously disregarded and weak force has grown and begun to act acutely 
to discredit the liberal conception of the state and democracy. Even “matured” systems have 
begun to experience “anti-system feelings” (Przeworski, 2019, p. 13), resulting in a decrease 
in electoral participation and the electorate’s confidence in institutions or even in democracy 
as the best (or least bad) form of government. This has led to the resurgence of sentiments 
from the first quarter of the 20th century, where “people of different political orientations, 
values, and cultures saw each other increasingly as enemies” (Przeworski, 2019, p. 23)
 
as a 
hindrance to the civilization process, deserving of extermination instead of equal respect and 
consideration. 
There is a contemporary dilemma within liberal thought: has democracy ceased to be an 
active subject in the realization of human rights, a characteristic feature of globalization for 
the stabilization of more fundamental political aspirations, and instead become a pejorative 
adjective to be combated? Whether yes or no, what does this scene reveal as a narrative of 
power and possibilities for the future of political organization of government systems in 
contemporary states: is democracy doomed to succumb under current conditions? 
(Przeworski, 2019, p. 33).  
The contemporary understanding of democracy goes beyond simply being a system in which 
government occupants lose elections and leave. Today, the term seems to indicate a type of 
representative, an indirect political system that allows (or should allow) pluralistic 

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participation in the formation of relevant and irrelevant public interest political choices in a 
given society, including clear delimitation of the limits and conditions of participation in 
public, political life. In other words, the system must establish what is or is not within the 
possibilities of the democratic game. If it does not do so, it will necessarily be subject to the 
dictates of political-party eventuality or to the traps of other interests that are not those of 
legitimate people. 
The concept of “democracy” has been the center of various conceptual disputes and narratives 
of power, and has become a central element in Western political, legal, socio-economic, and 
political-ideological debates, especially as a stabilizing factor and a minimum element for the 
effective implementation and protection of human rights on a global level. It is from this point 
on that the conceptual construction goes beyond being just a more or less representative 
system of government and becomes an object of desire for those who wish to see their 
political project within the realm of state accomplishments, as a stable and mature democracy 
is seen as the way to follow the steps of the civilizing process, moving further away from 
authoritarianism. 
In addition, in a constitutional system that privileges the centralizing position of the Judiciary 
as a source of political power disputes and stabilization of constitutional legal norms, 
distortions will be present if the limits and possibilities are not properly delimited by the 
legislative or by the Constitution itself. What can be perceived, when analyzing the relevant 
events that composed the 2022 election, is that Bolsonaro, in his attempt to be reelected, 
stretched the acceptable limits as far as he could in a democratic political game. The same can 
be said, with some clarity, of the institutional posture of the Supreme Court, as it felt that 
more than just a mere antagonistic political interest dispute or different state projects was at 
stake, and began to act as if democracy itself was under attack and needed its institutional 
support. Democracy, as if the STF were the only owner of it, chose a side. 
The critique of the performance of democratic institutions as actors that negatively impact 
democracy is not new, they can be organized into two major trends of constitutional thought: 
In the first, the focus is on the actions of spheres composed of representatives of the popular 
vote, which establish an abusive dynamic by “representing” particular interests in acts of 
political power to the detriment of the popular will and at the risk of erosion or, for some, 
destruction of democracy, even under the constitutional umbrella – another variation of 
constitutionalism that would be beyond its genesis. The second says that constitutional 
jurisdiction under the competence of the court implies an authoritarian or dysfunctional 
relationship with democracy, leading to another variation of liberal constitutionalism that 
diverges from its concept of limiting the exercise of power. 
In Brazil, the Supreme Federal Court (STF) and the legislative and executive branches of 
power have not been immune to such criticisms, and various voices have risen against the 
actors with significant political-legal actions. “Judicial activism”, “supremocracy” (Vieira, 
2008, pp. 444-464), and “ministrocracy” (Arguelhes & Ribeiro, 2018, pp. 13-32) are some of 

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the Brazilian versions to question elements of judicial supremacy and their impact on 
democracy; “representation crisis”, “outdated coalition presidentialism” are some of the terms 
that warn of the problematic relationship of representative voting powers to a democratic 
society. Diversifications arising from universalized criticisms that transcend borders and 
models of legal systems (Brinks & Blass, 2017, pp. 296-331): wherever there is constitutional 
jurisdiction, there are voices opposing the activity as “counter-majoritarian” (Brown & 
Waller, 2016, pp. 817-850); wherever there is a legislative or executive power, there will be 
opposition or political minorities that will attempt to attack the democratic legitimacy of the 
government or parliament. 
Worse still, the younger and less experienced a democracy or a country's re-democratization 
process is, the more daunting the observation is of authoritarian elements and nostalgic 
remnants of different, already surpassed times, disregarding humanitarian dictums or even 
satisfactory political representation. Bolsonaro is, in a sense, the result of such dissatisfaction 
with Brazil's recent democratic history, and was able to represent “those who were frustrated 
with unfulfilled constitutional promises; and, on the other hand, those dissatisfied with 
promises that were fulfilled”
 
(Barroso, 2022, pp. 1-34). As Luis Roberto Barroso (2022, pp. 1-
34) analyzed, the populist discourse of Bolsonarism would not find refuge in constitutional 
terms, as populism in its essence represents a march against sophisticated and corrupt elites: 
“Bolsonaro was elected following the traditional populist doctrine: the simple, pure and 
conservative people against the sophisticated, corrupt and "leftist" elites. As inevitable, the 
conflict that marks the relationship between populism and democracy was soon placed: there 
is no way to fulfill campaign promises without confronting the institutions supposedly 
occupied by representatives of these elites”.  
That Jair Bolsonaro acted contrary to democratic principles and public interest, including 
using aggressive language incompatible with the office he held, seems undeniable. However, 
there is another relevant part of this story. At the same time that the former president moved 
the political-institutional scenario to less republican paths, it is possible to say that the STF 
acted in the same way. 
The striking difference between the actions of power of the actors in question is that 
Bolsonaro used the public machinery in an authoritarian manner, attacked the democratic 
system of government as an end in itself, and there did not seem to be a well-elaborated coup 
plan, but rather a kind of authoritarian sadism aimed at weakening a democratic model with 
empty speeches and words of order to the wind, for those who follow him, not necessarily for 
the construction of a different legal order, even though it is authoritarian. The Federal 
Supreme Court, in turn, upon identifying Bolsonaro's moves, acted in an authoritarian manner 
to protect the democratic game. An authoritarian posture does not justify another, but without 
the energetic reaction of the court concerning the acts committed by the then-president, it is 
possible to consider a political scenario very different from the current one for Brazil, 
perhaps, who knows, with antidemocratic intentions in power. According to Justice Luís 

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Roberto Barroso (2022, pp. 1-34), the STF played a relevant role in curbing Bolsonaro, but it 
was not the only one to act to prevent coup attempts: 
The repeated threats to constitutional legality and the stability of institutions have generated a 
strong reaction from multiple sectors. First, the press, despite advertising boycotts and the 
contemporary difficulties of its business model, was a bastion of resistance. Properly 
distinguishing between fact and opinion, it maintained a critical tone and performed its role of 
watchdog with unflinching courage. Despite many fears of involvement by the Armed Forces, 
their leaders also resisted undue temptations. The defense minister and military commanders left 
their positions with dignity, reportedly because they disagreed with the political and 
intimidatory use of the institution. The Supreme Federal Court, which had been divided on the 
issue of combating corruption, united in defense of democracy. In this line, it reaffirmed its 
commitments to freedom of expression, preservation of civil society councils, the due 
legislative process, and above all, confronting attacks on institutions by extremist groups. In 
different investigations, which were later combined into a single inquiry into the activities of 
criminal organizations, the Court prevented threats of violence against its Ministers and 
facilities with hearings, searches and seizures, and even preventive arrests. The Higher Electoral 
Court, composed of three Supreme Court Justices, also faced undemocratic behavior by 
instituting procedures to investigate false allegations of fraud against the electronic voting 
system, as well as ordering the “de-monetization” of websites and channels that spread 
disinformation against the electoral process and democracy. 
What Barroso treats as a union of the STF in favor of democracy, with repeated commitments 
to freedom of expression, can be read as follows: a zero-tolerance exercise to any speech 
contrary to the democratic game or offensive to the members of the court. It is an institutional 
behavior that in Samuel Issacharoff's fragile democracy, is related to the judiciary as an 
inability to effectively dispose of institutionalized mechanisms for democratic protection, 
which places the author in an interesting interlocution with his contemporaries, as he assumes 
that “strong democracies need strong institutions” (Issacharoff, 2015, p. 196).   
Issacharoff's theory posits that contemporary democracies are vulnerable to diverse pressures 
that may undermine their stability and compromise their democratic values and institutions. In 
his view, democracies that exhibit weak institutions, low levels of legitimacy, and an inability 
to adequately manage crises and challenges are considered fragile (Issacharoff, 2015, pp. 12-
23). The challenges faced by fragile democracies, according to Issacharoff, stem from their 
difficulty in balancing the fundamental principles of democracy, such as individual rights and 
liberties, with the rule of law and the need to address security and safety threats. In many 
cases, democracies are faced with the dilemma of choosing between safeguarding individual 
rights and liberties and preserving national security, a situation that may have adverse effects 
on democratic institutions and values. Issacharoff contends that the court system plays a 
critical role in maintaining stability and legitimacy in fragile democracies by upholding the 
rule of law and safeguarding individual rights and liberties (Issacharoff, 2015, pp. 120-124). 
The problem, howev e r , i s w h e n , i n t h e n a m e o f t h e fundamental rights and freedom of 
citizens, the court enters directly into the political-electoral field, in order to, with its 

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decisions, actively affect the outcome of the elections because it understands that one side is 
more democratic than the other. It is for the defense of democracy that the Supreme Court, as 
an institution dedicated to defending the Constitution, acts in such a way as to weaken one of 
the sides, in the Brazilian case, which is what happened to Bolsonaro in his campaign.  
In an attempt to strengthen the democratic game, the result represents a curious paradox, in 
which, while the court's decisions helped to strengthen a candidate seen as the best for 
democracy, in an undemocratic way they help to undermine the opponent's campaign. “The 
problem goes beyond the restrictions on ideological commitments of a democratic state” 
(Issacharoff, 2015, p. 146), Issacharoff (2015, p. 146) argues that: “Political parties play a key 
role in providing a mechanism for informed popular participation in a democracy precisely 
because they are organizationally independent of the state”.  
Although it is correct to state that Issacharoff accepts the court to interfere in the electoral 
dispute to protect democracy, he envisions the possibility of interference based on the so-
called “Procedural Protections”, which refers to the legal principles regarding the protection 
of constitutional rights during the election period. These protections include measures to 
ensure that voters have equal access to the ballot, that their votes are counted accurately, and 
that election disputes are resolved fairly and efficiently. These procedural protections are 
crucial for ensuring the integrity and fairness of elections:   
The more difficult concern is with parties that genuinely vie for governmental office and even 
majority status to unwind liberal democracy. It is easy to imagine what may go wrong with 
party prohibitions. The ability to cordon off certain areas of democratic deliberation from 
particular kinds of speech invites censorship or suppression of political opposition, a move that 
can be utilized to insulate incumbents from an electoral challenge or as a pretext to impose the 
ruling majority’s form of orthodoxy on political exchange. But if history is a guide, excessive 
tolerance is dangerous as well. We can begin to test the range of permissible state responses to 
antidemocratic mass movements through the familiar categories of procedural limitations and 
substantive definitions of prohibited conduct (Issacharoff, 2015, p. 153). 
Three procedural concerns emerge in cases where democratic regimes try to prevent 
antidemocratic elements from gaining advantages through the electoral process. First: the 
most important safeguard is the concentration of power to suppress away from self-interested 
political actors to an independent judicial review (Issacharoff, 2015, p. 164). It is interesting 
to note that, for Issacharoff, the main defense that the democratic system can have is the 
political choice made by Brazil: a judicial system that strongly concentrates the decision-
making powers over constitutional issues, a type of legal constitutionalism in which the court, 
under the argument of protecting democracy, can do a lot, almost everything, which becomes 
accentuated and quite public when using its powers during the electoral game:  
Independent judicial review takes on particular significance in parliamentary systems. There is 
an ever-present risk in democratic systems that the claimed exigencies necessitating the use of 
emergency powers, including the power to suppress antagonistic political speech, will become 

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the rule that swallows the exception. Too many putative democracies, particularly in the 
immediate post-colonial world, have succumbed to one-party rule under the claimed necessity 
of domestic emergencies for any prescriptive account to ignore this threat. The common feature 
of fledgling democracies that collapse into strongman regimes is the concentration of unilateral 
power in the executive, an inherent risk whenever there is a claimed threat to national security 
(Issacharoff, 2015, p. 164). 
The second is preventing antidemocratic elements in the form of governmental action taken, 
which should not include criminal sanctions. The typical sanctions are removing members 
from legislative office, disbanding parties, and seizing party assets. The evidentiary 
requirements for the government’s action are tied to the interests and potential severity of 
punishment. In discussions of thwarting antidemocratic elements, there should also be 
consideration of whether the government's conduct is excessive in light of the perceived 
threat, and that the least restrictive means should be employed to achieve the objective 
(Issacharoff, 2015, p. 164).  
The solution of Issacharoff appears, once again, excessive and consistent with the possibilities 
presented by the Brazilian case of the 2022 elections. However, the problem is that the author 
only accepts the use of such extreme resources to ensure that voters have equal access to the 
ballot, that their votes are counted accurately, and that election disputes are resolved fairly 
and efficiently, which does not seem to be the case. The Supreme Court acted in a way to 
prevent a potential threat, Bolsonaro’s offensive speeches helped to build an image of a 
“myth” for his voters, while also allowing an authoritarian view in the general public. For the 
court, it is clear to say that Bolsonaro, myth or not, was more than someone bluffing, but a 
figure to be repelled from democracy. 
This is the key issue of th e problem: that Bolsonaro is an authoritarian figure, with repugnant 
speeches that manifested disdain for human rights and the democratic rule of law, is 
something that proves to be unquestioned. However, his criticisms of the Supreme Court, 
although disrespectful, and lacking in decorum, have at their core a respectable concern about 
the limits of a supreme court’s actions in the name of democracy, when, it is worth 
remembering, even with all its negative points, Bolsonaro was and continues to be a 
politically influential figure with a significant democratic base of voters. 
Varol’s (2017, p. 6) research explores a rarely studied phenomenon referred to as the 
“democratic coup d'etat”. Traditionally, academic legal literature has viewed all military 
coups as anti-democratic and carried out by power-hungry military officers looking to 
establish a long-lasting rule. However, Varol argues that not all military coups are anti-
democratic and that some may even promote democracy by overthrowing authoritarian 
regimes and facilitating free elections. After a democratic coup, the military serves as the 
interim government until elections occur and during the transition, they may try to influence 
the new constitution being drafted (p. 7). This influence can take form in three ways: (i) 
institutional, (ii) substantive, and (iii) procedural.  

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Varol (2017, p. 128) explains that the concept of constitutional entrenchment, from an 
institutional perspective, involves the establishment of counter-majoritarian institutions that 
have significant supervisory power over elected officials. These changes divide the exercise 
of political power between political institutions and independent counter-majoritarian 
institutions that align with the policy views of the military and virtually mark the end of 
Parliament’s supremacy. This can allow the military in power to protect certain types of basic 
principles in society: “In establishing these institutions, the military sought to protect the 
founding principles of the Republic—primarily secularism and national unity—which, 
according to the military, had preserved stability the face of threats to revert to theocratic 
governance structures”. Citing the case of the Turkish coup (1960), the author concludes that 
such institutions should be a constitutional court and a National Security Council. Regarding 
the constitutional court:  
The military leaders believed that an independent judiciary was necessary to prevent 
government oppression and abuse of power by elected officials and to protect the founding 
principles of the Republic, primarily secularism and national unity, much cherished by the 
military. As Cener Belge and Hootan Shambayati have observed, the formation of the Turkish 
Constitutional Court supports Ran Hirschl’s hegemonic preservation thesis. The military 
leaders, foreseeing their inevitable loss of power through democratic elections, created and 
empowered a sympathetic Constitutional Court to preserve their values and interests (Varol, 
2017, p. 129). 
From a substantive perspective, Varol (2017, p. 159) refers to how a military junta or an 
institution that has staged a coup may appropriate the constitutional terms by directly 
controlling the work of the constituent assembly. Using the example of the Portuguese coup 
(1974), he argues that this way of influencing a constitution may be viewed as more 
democratic than allowing authoritarian elements and interests contrary to the popular will to 
spread through society as political choices of government:  
The substantive entrenchment found in the post-coup constitution in Portugal is the most drastic 
example of constitutional entrenchment. Despite its drastic nature, or perhaps because of it, the 
entrenchment did not have long-lasting effects. Under the constitution, the Council of the 
Revolution would perform its functions until at least the end of the first legislative session of 
five years. In 1982, it thus became possible to amend the constitution and eliminate the Council. 
That year, a coalition of the existing political parties garnered the requisite two-thirds majority 
to revise the constitution. The amendments decreased the powers of the President, transferred 
them to the Parliament or other institutions, and most importantly, abolished the Council of the 
Revolution. The Council of the Revolution was replaced with “a civilian advisory body, the 
Council of State, and the Constitutional Court.” The amendments also established a legal 
framework for democratic civilian control of the military. Following the amendments, Portugal 
has remained “not simply a democracy, but a relatively high-quality democracy. (Varol, 2017, 
p. 159) 
With regards to procedural ways, the author explains that it refers to the control over the 
method in which a constitutional text will be drafted, who will do it, the way it will (if at all) 

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be put to a popular referendum, and he also uses the example of the Egyptian coup (2011) to 
show how the takeover of power can lead to a better enshrining of democratic principles:  
To date, the military has influenced the constitution-making process in Egypt through 
procedural entrenchment, orchestrating the transition process so that the new constitution that 
will eventually be drafted will favor its institutional and policy preferences. The military has 
attempted to achieve that outcome in four primary ways: (1) by holding elections under a 
condensed timeframe, (2) by holding parliamentary elections before the constitution drafting 
process begins, (3) by influencing the political makeup of the first People’s Assembly and Shura 
Council, and (4) by favoring a presidential system over a parliamentary system (Varol, 2017, p. 
175). 
It can be perceived that all of Varol’s concerns can be summarized in an institutional view of 
how a democratic game can function from an authoritarian intervention in the direction of the 
state. It is necessary to draw some considerations about the Brazilian case based on the 
insights of Issacharoff and Varol. Brazil was dominated by a military dictatorship from 1964 
to 1985, and since then has been a democratic republic. Nevertheless, the legacy of the 
dictatorship can still be felt in the country’s political institutions, such as the justice system, 
the legislative, and the executive. In light of the insights of Varol and Issacharoff, it is 
important to question the role played by the Brazilian Supreme Court in the democratization 
process and the consolidation of democratic institutions. 
The essence of the thought corresponds to considering the possibilities of the court to move to 
repress extreme acts aimed at putting the democratic nature of the political-electoral game 
into question while insisting on the implementation of preventive barriers, legal obstacles 
aimed at not allowing authoritarian incursions, at which time the author recognizes that the 
pluralistic deliberation necessary for the maintenance of democracy, may be at risk when 
there is a narrowing in the public space for the circulation of ideas (Issacharoff, 2015, p. 196).  
6 CONCLUSION 
It is noteworthy that both Varol and Issacharoff seem to share a romanticized, utopian view of 
the role played by a supreme court in a democracy: the court is seen as a moral virtue of any 
and every system that prides itself on being democratic, acting in opposition to the illicit 
interests of those who seek to distort an undefined sense of democracy, a sense that only the 
supreme court under the constitutional aegis would be authorized to reveal to society. It is 
striking how, despite intriguing research, they fail to present democratically satisfying 
answers to the problems that drive them. Instead of being viewed with distrust, the 
constitutional court is treated as synonymous with hope and civilizational evolution. The 
authors ignore that, despite playing an essential role in the stability and democratic gameplay, 
the supreme court has its political-ideological preferences that, when manifested in a political-
electoral context, considering the powers of the institution, can create an unnecessary, 
inappropriate, or even intentional imbalance to the outcome of the vote. 

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In the same vein, to assert that a supreme court can protect a democratic game better than 
well-defined political choices made by the people themselves is contrary to the very essence 
of democracy. Similarly, considering that military interventions can legitimately represent 
popular aspirations is equally a fantasy. Brazil has undergone a long period of military 
regimes in its history, the most recent from 1964-1985, which culminated in the so-called 
democratic opening with the creation of a new constitution. The framers, elected there, were 
various representatives of the former authoritarian militarism, which refused to relinquish 
power. Many said that the current 1988 Constitution would be the consecration of the coup 
d’etat victory. 
Varol’s notion is flawed when he believes that history has only one side. For each military 
figure who takes power, or for each institutional act that is not safeguarded by a popular vote, 
democracy fails, the system fails, and, worse, it is the same as allowing a strong concentration 
of power in the hands of a few. In the Brazilian case, what military interventions revealed, all 
of them, were deaths, tortures, and daydreams. Everything that democracy should not be. 
It should be noted that, despite the theoretical efforts made by the authors, both Varol and 
Issacharoff do not provide a description or even a solution that appears to be suitable for the 
Brazilian case. This is a legal extravagance, in which the supreme court moves according to 
what it understands to be the most correct for the defense of the democratic game without 
taking into account the degrading effects that its decision-making acts may have on the 
democracy itself. 
 
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*** 
Maurício Sullivan Balhe Guedes (Doctoral student with a Master’s degree in Constitutional Law at Federal 
University of Minas Gerais – UFMG. Constitutional Lawyer). 
 
*** 
Luisa de Boucherville Ferreira Lombardi (Law Graduate at Pontifical Catholic University of Minas Gerais – 
PUC/MG. Lawyer with experience in public law and human rights litigation). 
 
*** 
 
 
Povzetek: 
Brazilsko vrhovno sodišče v demokratičnem državnem udaru 
  
Raziskovalno vprašanje (RV): Ali bi bili takšni napadi na demokracijo zadostna podlaga za 
omejevalne odločitve sodišča? Če je tako ali če ne, kakšni so posledični učinki na samo 
demokracijo? 
Namen: Razumevanje premislekov brazilskega ustavnega sodišča med predsedniškimi volitvami 
leta 2022. 
Metoda: Ukrepi, ki jih je sprejelo sodišče, so značilnosti tega, kar je Issacharoff (2015) razlagal 
kot »krhko demokracijo«, v kateri mora biti diskurz med volilnim procesom povezan z 
demokratičnimi dosežki, kjer je vse, kar je v nasprotju z njim, zunaj možnost uresničevanja 
pravice na podlagi zagotavljanja volilne svobode. V nasprotju s konvencionalnim pogledom Varol 
(2017) razume, da obstajajo ukrepi, ki se običajno uporabljajo v avtoritarnih režimih, ki včasih 
bolj in bolje spodbujajo in pomagajo pri razvoju demokratične igre od tistih, ki jih običajno 
uporablja sam demokratični sistem. Raziskava predlaga dialog med avtorjema. 
Rezultati: Raziskava lahko dokaže, da je sodišče kljub avtoritarnim odločitvam uspelo prispevati 
k zagotavljanju normalnosti volitev. 
Organiziranost: Razprava o mejah delovanja sodišča, pa tudi o legitimnosti njegovega odločanja 
je ključni element same možnosti obstoja ustavne države, vpliva na delo sodnikov, odvetnikov in 
tožilcev ter omogoča za boljši družbeni nadzor. 

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Družba: Bolsonarizem je okrepil diskurz proti sodišču in okrepil vprašanja o legitimnosti 
institucij in volilnega postopka. Težava pa je v tem, da je Bolsonarova kampanja v veliki meri 
temeljila na boju proti demokratično vzpostavljenemu sistemu, v enakem tonu, v katerem je 
napadel človekove pravice manjšinskih skupin. Razumevanje te kompleksne dinamike moči v 
družbenem kontekstu, vpliv na prihodnje volitve ali celo kakovost demokratične igre je bistven del 
prispevka tega dela. 
Izvirnost: Pravilno je reči, da Bolsonaro ni mogel zamisliti svoje kandidature za ponovno 
izvolitev, kot bi si želel, večinoma zaradi ekspanzionizma odločanja sodišča. Uporabljena metoda 
takšne situacije, tudi če je netipična, ne vidi nujno kot negativno, če le krepi demokracijo. 
Omejitve/nadaljnje raziskave: Ta raziskava je omejena s posebnim časovnim obsegom, saj ne 
more natančno napovedati vedenja brazilskega vrhovnega sodišča po volilnem obdobju 2022. 
Poleg tega je tudi teoretični okvir nezadosten za predvidevanje ali popolno predstavitev 
raznolikosti brazilskega demokratičnega sistema. Raziskovalni predlog bi bil nenehno spremljanje 
vrhovnega sodišča in njegovih odločitev v zvezi s temeljnimi pravicami, zlasti ob upoštevanju 
politične pokrajine izven preučevanega obdobja, da bi ugotovili, ali je šlo za posebnost tistega 
trenutka ali za nekaj, kar se je zasidralo v ideologiji sodišča. 
  
Ključne besede: brazilsko vrhovno sodišče, demokratični državni udar, volitve, Bolsonaro. 
 
 
 
Copyright (c) Mauricio SULLIVAN BALHE GUEDES, Luisa de BOUCHERVILLE FERREIRA LOMBARDI 
 
 
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