A Supreme opinion

On the morning of last Wednesday, the 10th, at around 9 a.m., justice Luiz Fux began reading one of the most extensive and meticulous opinions ever recorded in the history of the Supreme Federal Court (STF). He was the third to present his arguments in the trial of the main defendants accused of the unrest that occurred on January 8, 2023, in Brasília, including former president Jair Bolsonaro. Criminal Action 2668 passed through the hands of the Court’s only career magistrate. Thirteen hours later, nothing remained of the prosecution’s case against the defendants. Fux ruined the spectacle of robes.

Despite Fux’s opinion, the trial of the so-called “crucial core” of the coup that never materialized concluded on Friday, the 12th, in the STF’s First Panel, with the expected outcome. All seven defendants were handed severe sentences, except for cooperating witness Colonel Mauro Cid — two years in prison, but under an open regime. Also part of the First Panel are Alexandre de Moraes, Cármen Lúcia, Cristiano Zanin, and Flávio Dino.

Reporting justice Alexandre de Moraes sentenced Jair Bolsonaro to 27 years and 3 months in prison, a penalty that ultimately prevailed. The sole mitigating factor was his age — the former president is 70 years old. The Court’s jurisprudence does not allow for an en banc hearing (an appeal to the Plenary) because Fux’s dissent was singular. The deadline for the publication of the ruling is up to 60 days.

On Thursday, the 11th, the final session was marked by a barrage of veiled jabs and provocations from Moraes — who delivered an 18-minute aside, complete with a video presentation —, Flávio Dino, and, more subtly, Cármen Lúcia. Two justices not part of the First Panel made a surprise appearance in the mini-plenary to witness the announcement of Bolsonaro’s sentence: the Court’s president, Luís Roberto Barroso, and the most senior justice, Gilmar Mendes. The atmosphere was one of celebration.

The lights went out, and the spectacle concluded.

Facts versus narratives

Why did Fux’s opinion provoke such strong reactions both within and outside the Court? Brasília went to sleep differently mid-week, as occasionally happens when something unexpected unfolds in the Praça dos Três Poderes — and from the STF, no one expected anything at all. Supported by what he described as a “task force” of assistant judges from his chambers, Fux demonstrated, with technical rigor and extensive legal scholarship, that everything in that trial was a farce. What’s more, he addressed topics that thousands of Brazilians had been forbidden to discuss by justice Alexandre de Moraes — for example, electronic voting machines, denial of due process, censorship, media impartiality, the overexposure of justices in the media, and political persecution. He spoke about everything naturally and without circumlocution.

Right in the opening lines, he ruined the party for Moraes and company: “I conclude that the STF lacks absolute jurisdiction for trying this case, and therefore, all judicial acts performed must be nullified.” The explanation lies in the law and is even known by non-legal professionals: none of the defendants possesses special jurisdiction; they held no public office on that date; they were just ordinary individuals — this is the so-called natural judge theory. But what about Jair Bolsonaro? He ended his term at the end of the year. There is no such thing as an endless special jurisdiction. “Either the case must go to the plenary or it must descend to the first instance,” Fux stated.

From that moment on, the TV Justiça cameras began to capture Flávio Dino’s patent discomfort and Alexandre de Moraes’s perpetually stern expression. Fux could have concluded his opinion there; it would have been enough, but he had prepared a masterclass in Law for his Court colleagues.

“It is not incumbent upon the Supreme Federal Court to make a political judgment on what is good or bad, convenient or inconvenient, appropriate or inappropriate. This court’s duty is to affirm what is constitutional or unconstitutional, legal or illegal, invariably from the perspective of the 1988 Constitution and Brazilian laws. This mission demands objectivity, technical rigor, and interpretive minimalism, so as not to confuse the role of the judge with that of the political agent.” (Luiz Fux, judgment of Criminal Action 2668).

Throughout Wednesday, the magistrate read 429 pages with virtually no breaks. He began around 9 a.m. and finished at 10:45 p.m. Until then, the record was held by Celso de Mello, in 2019, with 152 pages, read in six and a half hours. In 2012, Joaquim Barbosa, the reporting justice for the Mensalão scandal, also spent a significant amount of time, but fragmented his opinion over several days due to chronic back pain. Fux opted for a different approach: he took only one break for lunch and brief ten-minute pauses, during which he’d walk to his chambers without diversion or hallway conversations. This was a strategy to prevent asides, as he had communicated the day before. He made no jokes and did not explicitly name his colleagues, stating, “to avoid being impolite.” He didn’t need to: Moraes, Dino, Cármen Lúcia, and Zanin understood when the messages were directed at them. Starting with the conviction of president Lula da Silva, which was sent back to the First Instance by the STF due to a “partial nullity” — in other words, a mere technicality. At the time, Zanin was the PT party member’s lawyer.

The justice repeatedly invoked the memory of the 2012 Mensalão trial, the most extensive to date, in which Cármen Lúcia had distinguished herself. He recalled the corruption, the piles of pilfered money — in fact, that case was an attempt at “abolishing the Rule of Law.” In a direct message, he cited the then-senior justice Celso de Mello more than once, with whom he claimed to converse daily. Celso de Mello was a kind of guru to justice Cármen Lúcia. He used the Mensalão case to show Moraes that a trial of such magnitude requires caution and time. And that the Attorney General produced a pathetic accusation because, by racing against the clock, he failed to find evidence within the “tsunami of data” — impossible to examine in just a few months.

The Mensalão trial involved 53 sessions, spread over 138 days, but the journey from indictment to final ruling took years. “I have been at the Supreme Federal Court for 14 years and have judged complex cases, like the Mensalão. That process took two years to receive the indictment and five years to be judged,” he stated. To Dino, who penned the most superficial opinion, filled with mockery, such as jokes about Mickey Mouse and the blocking of credit cards via the Magnitsky Act, Fux asserted that a true judge must possess responsibility, study the entire process devoid of political passions, and, most importantly, not be so eager. In other words, judges are paid to uphold the law, not to voice opinions.

At that point, Fux seemed to have looked in the mirror before entering the Panel’s mini-plenary — perhaps, in the rearview mirror. If he serves his full term, he will leave the Court in 2028, upon reaching 75 years of age. Before arriving at the STF in 2011, taking justice Eros Grau’s seat, he spent a decade at the Superior Court of Justice (STJ). When he entered the judiciary in 1982, he boasted the top rank in the judicial examination. It is possible that his opinion on the January 8 tumult was his last in such a significant case — one that will be remembered for decades.

In analyzing the crimes listed by the Attorney General’s Office, he sought historical references to legal concepts — 25 legal scholars were cited — the Court’s own jurisprudence, extensive research into international legislation, and citations from the trove of Brazilian laws. His team studied the case thoroughly—perhaps they were the only ones. At several points, he became didactic: he recalled that the crime of armed criminal association requires someone to be armed, which did not occur. Or regarding the abolition of the Democratic Rule of Law, when he asked: “Did anything happen in the country afterward? Nothing.” In the case of the “coup minute” copy, found at the Liberal Party’s headquarters a year and a half after January 8, he was assertive: “I have already judged cases where documents were found that had nothing to do with anything.”

“No judge should assume the role of an inquisitor, sifting through more than 70 million megabytes of documents searching for evidence that fits the accusatory rhetoric,” he declared.

From a technical standpoint, he will be remembered in the future as the scriptwriter who penned the accurate narrative of the “coup plot” and what was subsequently made of it. This is a document that neither Alexandre de Moraes nor the Attorney General, Paulo Gonet, will be able to refute based on evidence and facts — or “the glove that fits the hand,” an analogy the justice frequently repeated.

Even for critics, particularly in the old press, who were quick to label him controversial because he had voted to condemn those arrested for the January 8 events until last year, there was an answer: a judge must possess the humility to review their positions and change course if necessary. For example, he stated that he revised his assessment of Mauro Cid’s plea bargain because, although he disapproved of the piecemeal format of the depositions, he understood that the military officer appeared voluntarily. He accepted the plea bargain and, ultimately, voted for Cid’s conviction.

Another important point was when he expressed concern about the impact that the legal acrobatics performed by the STF have on the country’s 18 thousand judges. “Every precedent established here must ensure stability and security for the legal order,” he stated. The cascading effect of the justices’ unilateral decisions across Brazil’s 90 courts is, indisputably, a real problem.

For most of the prisoners and their families, the clock hands will remain frozen on that afternoon in Brasília. It is possible that the approval of an amnesty by the National Congress might alleviate some of the pain. Time will not return, but at least the future for hundreds of mothers, grandmothers, fathers, and “all the Déboras” — including the one holding a “lipstick” — might be in freedom. Now, all of them have been provided with an organized sequence of facts to defend themselves. The truth has been put on paper. There was never an ongoing coup d’état, nor did anyone leave home armed, under the guidance of a leader.

It was just one vote, indeed, incapable of reversing an authoritarian model that has been contaminated by politics in the higher courts for years. But, for one day, the country believed there are paths that can be followed when one seeks to emerge from the darkness. Fux was not a hero. He was a judge.