Supreme Court to face more hostile Senate

Luiz Inácio Lula da Silva’s (Workers’ Party, PT) reelection gives the majority wing of the Supreme Court some breathing room, according to justices interviewed by Valor. The assessment is that, even though the court will have to deal with a more hostile Senate starting next year, there is room to hold back impeachment proceedings. The question is what will happen to Justice Alexandre de Moraes. The scourge of Bolsonarism for his role in the “fake news” and coup plot investigations, he lost credibility after his alleged involvement in the Banco Master case came to light.

The assessment is that justices Kassio Nunes Marques and André Mendonça may be more isolated than ever. The pair of Jair Bolsonaro appointees presided over the Superior Electoral Court (TSE) in this year’s elections and, according to justices, burned through all their chips betting on a Flávio Bolsonaro (Liberal Party, PL) victory. The latest instance came on Sunday, over Nunes Marques’s stance on the request to extend voting hours.

With no position from the Electoral Court, Supreme Court Justice Cristiano Zanin decided to extend voting from 5:00 pm to 7:00 pm, which could give the defeated group an opening, once again, to turn against the court and challenge the election result. A justice consulted by Valor considers it unlikely that the vote will be annulled, given Lula’s margin of more than 4 million votes.

In addition, the assessment is that Nunes Marques and Mendonça acted to expose their Supreme Court colleagues by deepening the internal crisis caused by Master, and issued rulings to hurt Lula in the final stretch of the campaign. Contacted, both declined to comment.

Examples, they say, include Mendonça’s release of the Federal Police (PF) report mentioning messages from former banker Daniel Vorcaro, owner of Master, sent to a phone said to belong to Moraes. The issue was heavily exploited in the first round, and the damage fell on Lula. In the final phase, there were moves against the “Lula’s Army” channel, created by Federal Deputy André Janones (Sustainability Network, REDE, Minas Gerais), and the removal from the docket of trials that could have hurt Flávio at the TSE.

“They picked a fight with a lot of people because they wanted to become the owners of the Supreme Court. Obviously there will be consequences,” said a Supreme Court member on condition of anonymity. In his view, it is still hard to make many predictions about the next chapters given the divided country that emerged from the ballot boxes. There are, however, two forecasts: that the court does not intend, at this time, to abandon Moraes, and that if impeachment moves forward, there will be efforts to see that Nunes Marques, who is also under strong suspicion of involvement in the Master case, becomes the target of a similar proceeding.

Justices and insiders also believe the court may close ranks, as it has at other times when it felt under attack: in the 2022 elections, after January 8, 2023, in the coup plot trial, and amid U.S. threats against Supreme Court members. Chief Justice Edson Fachin, who does not want his tenure marked by the impeachment of colleagues, may also adopt a more defensive posture toward the court.

With the outcome of the presidential race, Lula should finally be able to move forward on filling the vacancy open since October 2025, when Luís Roberto Barroso retired early. Justices Luiz Fux, Cármen Lúcia, and Gilmar Mendes will also retire during the PT leader’s term. That means the government will have at least four appointments in the coming years, a number that could grow if impeachment proceedings advance in the Senate, which would be unprecedented.

If he stays on the court, Moraes will take over as chief justice in September next year. Impeachment could bring forward the tenure of Nunes Marques, Moraes’s successor, with Mendonça as vice president. Justices do not yet speak very openly about the matter, but there is chatter that if Moraes leaves and Nunes Marques stays, they could pick a different chief justice in a secret vote. Normally the choice is symbolic and follows a preset order, which has never been broken to date.

The Supreme Court also has an ace against impeachment. At the end of last year, Mendes issued an injunction raising the quorum needed to remove justices and giving the prosecutor general exclusive authority to file removal requests against members of the court. The justice later revised the latter requirement, but it could be reinstated if the court feels threatened.

On another front, Nunes Marques is the rapporteur at the Supreme Court on a request to annul the conviction of former president Jair Bolsonaro, sentenced to 27 years and three months for leading a coup attempt. Justices believe the outcome weakens a possible favorable preliminary ruling for Bolsonaro.

The justice has said he would take the case to the full court after the runoff. Lula’s reelection could undercut that intention, given how hard it would be for the request to prosper at the Supreme Court. Besides Moraes, justices Zanin, Flávio Dino, and Lúcia, who voted to convict Bolsonaro, while Fachin and Mendes oppose reviewing the conviction, according to justices and aides consulted.

There are no clear indications of what will become of Mendonça’s situation. The justice is the rapporteur of two of the court’s most high-profile cases: the Banco Master investigation and the inquiry into fraud involving association fees deducted from retirees’ and pensioners’ benefits at the National Social Security Institute (INSS). He is therefore expected to retain power on the court, despite the circumstances and possible isolation.

*By Tiago Angelo and Giullia Colombo — Brasília

Source: Valor International

https://valorinternational.globo.com/