Opening the Black Box: Three Decades of Reforms to Brazil's Judicial System

Abstract

Over the course of the past thirty years, the Brazilian judiciary has been remade. The courts have left behind the timidity of the military authoritarian era, as death and retirements gave rise to new corps of senior judges and a new constitution transformed their basic institutional foundations. Greater independence, increased legitimacy, and the democratic promise of equality before the law have all contributed to ballooning public demand. New constitutional rules and prerogatives have also placed the courts squarely in the midst of the most important political debates of the past three decades in the country. Nonetheless, Lula’s statement in the epigraph above reflected the broader public perception at the turn of the century: Brazilian courts needed a significant overhaul if they were to effectively address concerns about judicial bias, inconsistency, and corruption. Following more than a decade of debate, a major constitutional reform was approved in 2004, adding to a number of smaller-bore changes that were made over the preceding two decades. Together, these reforms have significantly altered the court system. Yet despite these changes, the transformation of the judicial system remains incomplete, and has yet to achieve all of the aspirations placed upon it by Brazilian society. Indeed, at this writing, there is once again a building discussion on the need for new reforms to improve court performance. This paper evaluates continuity and change in the Brazilian courts, and assesses this “new” Judiciary. We examine the institutional evolution of Brazil’s judicial system with an eye to the expected role of courts in a democracy, what could be called a “democratic judiciary.” The paper begins with a discussion of the overall structure of Brazil’s judicial system in the hopes of making clear the dilemmas that have driven reform since 1985. The second section summarizes reform efforts. The third section evaluates the court system’s effects on business, public policy, corruption and democratic legitimacy in Brazil over the past thirty years. The final section examines the current state of the courts, and recent discussions of possible additional reforms.