Untangling the Complexities of the Brazilian Judicial System: An Interview with Fox Fellow Julia Cani

May 3, 2023

Julia Wand Del-Rey Cani is a Ph.D. Candidate in Law at the University of Sao Paulo. Thanks to the Fox International Fellowship, she has spent the academic year 2022-23 at the Yale MacMillan Center. In this interview with CLAIS, she shared her views on the Brazilian judiciary system, her connection with the American system, and her time as a Fox Fellow. 

Can you tell our readers about your research?

My research focuses on the Brazilian Supreme Court decision-making processes and the possible institutional changes the Supreme Court made in the adjudication process in recent years. I map the context in which new decision-making mechanisms have been used and discuss the implications of innovative practices to the Brazilian institutional design of constitutional review. The Court has developed mechanisms to overcome inconsistencies in its review model, particularly the distinction between a “thesis” and a “case” as different focal points for each decision. 

It is a relevant distinction.

Yes, because it enables a broader scope of the Court’s review as transforming cases into thesis changes the effects of decisions in concrete cases from inter partes to be binding and erga omnes. In addition to modifying the scope of the decision, deciding the “thesis” may also make clear what was actually decided. In other words, it signals the opinion of the Court, an effort to standardize the response for multiple identical cases as our system of precedents is still being developed. 

 I hope to foster public debate about all the possible consequences of oscillating decision-making practices. It is essential to have predictability regarding legal rules and practices derived from them.

What other options do people have?

There is no predictability about when a single case should be judged or when a “thesis” should be enacted. What happens today is using a “thesis” with the consequent elasticity of the original boundaries of each legal action, expanding the effects of decisions without this practice being properly regulated. If the Court can arbitrarily choose when to focus on the facts of the case or its abstract legal questions, the justices would determine the scope of decisions according to the topic debated, the parties, or other factors. Thus, if the oscillation between deciding a “case” or a “thesis” extends over time, it leads to the hypothesis that justices use this oscillation as an instrumental distinction to achieve certain outcomes. Some might argue that this is a gradual improvement to consolidate itself as a Constitutional Court that considers its precedents. Either way, people should know the rules for the constitutional decision-making process in advance. 

Can you describe the difference between a “thesis” and a “case” and how this distinction impacts the constitutional adjudication process?

To make a decision means resolving a specific issue taken for trial by opposite parties. The justices will rule a decision focusing only on the facts of that particular legal action. On the other hand, a “thesis” implies deciding the matter abstractly, focusing on the legal question regardless of the case specifics or the procedural rules for each type of legal action. In the latter, the facts introduce a specific topic to the deliberation process rather than limit the form or scope of the decision. 

Does the Brazilian Supreme Court use both of them for decision-making?

Yes, but the outcome might differ depending on whether they use a “thesis” or decide abstractly. To enact a “thesis” is to crystallize the opinion of the Court in a concise statement. The Brazilian Supreme Court (STF) operates both as a Constitutional Court, dealing with abstract judicial review, and as a Supreme Court, the highest appellate Court of the Judiciary. Combining the concrete and conceptual judicial review, this hybrid model has led to an overwhelming workload for the Court. In abstract review, there is a binding and erga omnes effect, except for the STF, which may decide in contradiction to its own decisions, yet only the operative part of the Court’s decision binds. The ratio decidendi behind the ruling is not binding. On the other hand, in concrete review, the decision is inter partes; that is, its effects do not go beyond the subjective limits of the cause. Accordingly, the STF’s decision scope may vary according to the proceeding that brings the matter to the Court. Until recently, deciding a concrete case differed from deciding a legal question abstractly. In recent years, however, an idea of clear separation between the meaning of deciding a concrete case or a “thesis” started to present vague and oscillating outlines because the justices began enacting a “thesis,” or doing it in abstract terms at random in any judicial review action.

 Enacting a concise statement means that the opinion of the Court will be clear to the public. It also changes the scope because effects originally applied only to the parties can now impact people not initially involved in that legal action.

What are some consequences we have seen or can expect from this change?

This practice may change what is the final decision and the scope of that decision. First, it changes the decision because enacting a concise statement means that the opinion of the Court will be clear to the public. It also changes the scope because effects originally applied only to the parties can now impact people not initially involved in that legal action.

To some extent, your research also focuses on the decision-making process of the US Supreme Court. How does this compare to the decision-making process of other countries’ highest courts?

The United States Supreme Court plays an essential role in developing mechanisms to settle litigation in a way that facilitates enforcement by the lower courts. I take its decision-making process as a source of comparative analysis to verify the possible paths the Brazilian decision-making process can pursue in turning precedents into a source of law. Of course, comparing specific aspects of the decision-making process in these two countries will require special care given the different contexts. Still, this study is worthwhile because it sheds light on a feature that, at first glance, seems to have no more significant impact: small changes in the decision-making process that drive more relevant and institutional changes. Most comparative analysis tends to focus on formal institutional changes that affect the Court, such as constitutional amendment, appointing new justices, establishing fixed terms for them, and so forth, rather than analyzing how random changes in the decision-making shape existing judicial review models.

Can you tell us about an example of this?

In the overturn of the 1973 case Roe v. Wade, for example, the Court’s refusal to block the law was not just a docket control issue. Justices accepted the procedural hurdles imposed by the Texas law’s unusual structure, which means there has been a change in the decision-making process that was in force until then. The state legislators successfully set out a device to evade judicial review because the majority of the US Supreme Court justices decided not to rule that law unconstitutionally. In addition, the Court used the Shadow Docket, the draft of the decision was leaked, the originalist argument, which used to be one of many possible arguments to justify a decision, was perceived as the only proper way to proceed, and so forth. It is important to shed light on the Court’s decision-making process changes, as they can be the framework for more permanent institutional changes.

What else can we learn from this comparison?

Traditionally, studies tend to focus on the similarities and differences between them. In such a manner, the distinction between the ‘case or controversy’ versus ‘in the abstract’ is used to differentiate how the review takes place. Critics of these studies advocate for an analysis that goes beyond this dichotomy to analyze, for example, how decision-making occurs in practice and the effects of the Court’s deliberations. The latter is a more appropriate perspective, given the complex variations of resources related to judicial review. Cultural factors and specific contexts of each country shape, much more than this dichotomy, how institutions work in reality. In the US tradition, where the decision-making technically concentrates on a concrete review, studies argue that the facts of a case (the concreteness) serve as a source to collect data and generate abstract and general directions that surpass solutions of any particular case. This would be especially true considering a system of well-established precedents because general conclusions from specific cases will guide how to deal with future and similar cases. Taking the Brazilian Court (STF) as an example of countries within Latin America that has mixed features of different models of review while operating within a not yet well-established system of precedents, I aim to explore locally driven contexts to question my previous assumptions asking if, after all, deciding a case is different from a “thesis.” It could be argued that, as in the case of US tradition, every concrete decision inevitably has a ‘thesis’ in it, so this distinction would not be relevant. Still, in practice, it can make a great impact.

What do you hope your research will achieve, both in terms of contributing to legal scholarship and practical impact on judicial decision-making?

 My research is just one topic within a broader scholarship dedicated to studying problems related to the decision-making process adopted by the STF. The origin and consequences of these problems are associated with an apparent institutional dysfunctionality of the judicial review model adopted in Brazil. To another extent, the justices, actors in charge of constitutionality review, actively contribute to reconfiguring decision-making. Consequently, it can be responsible for changes in the review model initially designed by the constituents. In this scenario, the individual understanding of the type of Court the STF should be in is a determining factor contributing to those changes. This understanding becomes even more relevant when each justice assumes the presidency of the Court, which changes every two years. That individual comprehension and willingness to act will lead the focus of the measures adopted by each president in his two-year term, often leading to an administrative discontinuity in institutional arrangements. In addition to characterizing simple organizational changes, the acts of each president may reflect true institutional innovations, especially regarding the Court’s decision-making process. After mapping those changes, I hope to foster public debate about all the possible consequences of oscillating decision-making practices. As previously mentioned, it is essential to have predictability regarding legal rules and practices derived from them. In other words, the effects of the decisions must be transparent, known in advance, and remain stable over time. 

 Being a Fox Fellow allowed me to meet students from many countries facing different kinds of institutional instabilities such as empowerment or weakening of the Judiciary and threats to democracy. 

Your research touches on some potentially contentious issues related to the power of the judiciary. How do you navigate this terrain, and what challenges have you faced as a legal scholar working in this area?

Especially in times of democratic instability, having the Supreme Court as your object of study can be complicated because, beyond all the criticism, it is necessary to recognize the role they play in protecting the constitution and counterweighting the other powers. However, being responsible for judging and containing authoritarian impulses does not preclude the need for self-restraint and accountability, which includes proceeding with transparency about the decision-making path and regimental matters. Sometimes I find it challenging to gather data from the STF repositories due to the need for more patterns in new decision mechanisms. The changes often occur during the live deliberation, and it is possible to notice that the judges cannot reach a consensus about how to proceed. In addition, it is not uncommon to have variations in decision-making depending on who is the rapporteur and the Chief Justice. Another challenge regards the changes in the layout of the Supreme Court website. Each president has preferences regarding the format of exhibiting the decisions, which can make it difficult to catalog data in the course of changes in how findings and internal rules are presented. Our responsibility as scholars is to keep track of what is happening in decision-making, how it is happening, and why it is happening. Deciding how to decide is not a minor issue. 

Finally, can you tell us a bit about your time at the Yale-MacMillan Center? How has your experience as a Fox Fellow has impacted you, and how it contributed to your overall research interests?

The time at Yale-MacMillan Center was enriching in many ways. It enabled me to benefit from a variety of academic opportunities ranging from seminars, courses and workshops, not to mention the connection with faculty members. Above all things, being a Fox Fellow allowed me to meet students from many countries facing different kinds of institutional instabilities such as empowerment or weakening of the Judiciary and threats to democracy. The conviviality amongst the fellows and the interdisciplinarity of our research made it possible not only to exchange common experiences about our countries, but also to discuss solutions to the problems we all face.

By Francisco Ángeles & Alan-Mendoza-Sosa