To date, America’s greatest contribution to the world has been its Constitution. The importance of this document far surpasses such other cultural achievements as the Moon landing, the telephone, GPS, rubber vulcanization, and Henry Ford’s mass production lines. It is more important, even, than Gone With the Wind, and the hamburger — even though this delicacy has a disputed origin.
Prepared in the spring and summer of 1787, this document continues to hold untold international influence, and remains a source of inspiration and perpetual study. The Constitution of the United States of America has enmeshed itself as part of the legal heritage of humanity.
But this heritage is not exempt from criticism, either because it embraces a very lean text, or because, in the mistaken analysis of some, it would have granted a lot of autonomy to the Member States. The thin text has to do with the period in which it was written, either because there was no need for long constitutions, or because the “founding fathers” wrote very well, with talent and conciseness.
A lengthy hearing
A “product” of the Constitution of 1787, the Supreme Court of the United States, an institution that has a looming presence in academic texts around the world, returned to the Brazilian Senate in style on Dec. 13, 2023, during the hearing of Flávio Dino, Minister of Justice since Jan. 1, 2023, who was appointed by President Luiz Inácio Lula da Silva to the existing vacancy to fill a seat at the Federal Supreme Court, the highest Court in the land.
The considerations of the illustrious native from the State of Maranhão around the so-called John Marshall House, deserve some reflections, which follow.
Minister Dino’s hearing was one of the longest in the Senate’s recent history, lasting almost 11 hours. It’s natural that it was long. Firstly because it hosted, in the Constitution and Justice Committee of the Upper Chamber, two authorities appointed to two different positions: Dino himself and Deputy Attorney General Paulo Gonet,[1] chosen for the position of Attorney General of the Republic.
There are, however, other components that have stretched it: the political polarization that Brazil has experienced in recent years; the minority of senators uncomfortable with Minister Dino’s combative stance, which combines intelligence, an extensive political career, quick responses and consistent oratory; the belated perception of the political class and part of Brazilian society, that the Federal Supreme Court is the guardian of the Constitution and it is up to it to give the last word on law in Brazil, even if its binding decisions do not achieve legislative function.
Charles Evan Hughes and the role of the court
Charles Evan Hughes[2], who was an associate judge (1910/1916) of the Supreme Court of the United States and later its Chief Justice (1930/1941), is the author of a phrase that well summarizes the role of the Judiciary in a Democracy that welcomes judicial review[3]: “the constitution is what the judges say it is.”[4]
Evidently, the Constitutional Courts (Supreme Courts[5] included) are not the only interpreters of the Constitution, even in countries that adopt concentrated constitutional control. The reason is simple: in a truly democratic environment, everyone, little more, little less, is an interpreter of the Constitution, with the Supreme Courts having the definitive say.
These were the ingredients that transformed Minister Flávio Dino’s hearing, and by extension that of Professor Paulo Gonet, into one of the richest in the recent history of the Federal Senate.
Earl Warren and Sandra Day O’Connor — politicians becoming judges
Flávio Dino cited the United States Supreme Court ten times, the first time in the initial considerations, to be more precise, in the fourth paragraph. And in it he immediately made two mentions of the Court, stating that “here and elsewhere, the presence of politicians and their policies in the Supreme Courts is not strange”[6]. Then he listed two examples of the Court based in Washington: “in the history of the Supreme Court of the United States, we will find everything from former Senator Sandra Day O’Connor, recently deceased, who was a Senator of the Republic, to Warren, who was Chief of Justice and marked the history of the Supreme Court of the United States, with past experience as State Governor.”
The senator from the State of “Maranhão,” a land historically important in Brazil, took two good examples to illustrate politicians who were good judges in the most influential Court in the world. The first to be mentioned, Earl Warren, shone as a magistrate. He was born and had a political career in California, affiliated with the Republican Party and held two relevant positions in the State: Attorney General and then State Governor, both elected.
Later, appointed to the Court by President Dwight Eisenhower (1953/1961), he became a great Chief Justice, appearing in the gallery of the greatest in the history of the American Judiciary, for a set of reasons, the main of which has name and surname: Linda Brown, represented by her father, Oliver Brown, who saw her suffering transformed into a successful argument by Thurgood Marshall[7] for the unconstitutionality of “separate but equal,” a doctrine prevailing since the end of the 19th century, when the Court, in an unfortunate moment, judged the case Plessy v. Fergusson (1896). The Court’s overruling of this understanding occurred precisely at the hands of Earl Warren, well remembered by minister Flávio Dino.
Brown v. Board of Education buried official racial discrimination. It is the beginning of the end of segregation in schools, buses and other public spaces.[8] It is the most important decision of the Court in the 20th century, a “super precedent,” as Amy Coney Barret, nominated by Donald Trump, aptly classified in her hearing in the Senate in October 2020, just over a month[9] before the presidential election in which Trump would be defeated in the Electoral College and by a large margin of popular vote.
As for Sandra Day O’Connor, nominated by conservative Ronald Reagan, first an observation. Minister Dino stated that she “was a Senator of the Republic.”[10] There is a small mistake, natural for those who are speaking extemporaneously. In fact, before joining the Court, O’Connor was a state senator in Arizona, from 1969 to 1975.[11] In the United States, the States have a House and Senate, just like in Brazil in the past.
She took over the Court from Potter Stewart, the judge appointed by Eisenhower and who became famous for the phrase “I Know When I see it,”[12] in a vote in the case Jacobells v. Ohio (1964), which concerned an allegedly obscene scene from a film.
O’Connor entered to the United States History for being the first woman to sit on the Supreme Court, which at the time was about to complete two centuries of operation. Although she held political positions for a conservative Party (Republican) and also a conservative State (Arizona), O’Connor voted, as a legislator, against measures to criminalize abortion,[13] which earned her some resistance when her name was announced to join the Supreme Court, an opportunity in which she modulated her speech, demonstrating a certain sympathy for the prohibition.
The Arizona senator, who became a state judge and was later appointed to the Supreme Court, was a good judge. She voted with conservatives and liberals; more with the former than with the latter.
John Marshall — Activist or founding decision?
Later on, the senators asked minister Flávio about judicial activism. The answer was concise and simultaneously rich in details because it brought into debate characters and cases judged by the Supreme Court of the United States, which he cited four times in a single paragraph.
Flávio Dino managed to summarize more than two centuries of history in one paragraph. He cited John Marshall, the longest-serving Chief Justice in the Court’s history: he presided over it from 1801 to 1835. A record. Marshall, as we know, is the author of the opinion in the case of Marbury v. Madison (1803), the first known, documented and studied decision on constitutionality control, its birth certificate. Decision that was made at a time of deep political conflagration, between John Adams (second president of the USA) and Thomas Jefferson, who was Adams’ vice president, and although a man of vast culture, had reservations, already elected president, about the new attribution (judicial review) of the Court that was emerging.[14]
The control of constitutionality in the United States, as in Brazil, appears to be the most relevant attribution (competence) of the Judiciary, even though the Court based in Washington DC exercises it without it being explicitly provided for in the Constitution[15], which makes it even more important the construction designed by John Marshall in 1803.
The minister only cited Marshall; the mention of the Marbury case was indirect. He called it the “first activist ruling by the United States Supreme Court.” [16] The expression “activist decision” in the sentence doesn’t really please me, but it’s not disconnected from reality. I believe it would be better to state that this is a “decision that laid the foundations for constitutionality control.” It seems to me that John Marshall’s arguments, in Marbury, explain the dynamics of judicial review, are not projected as activism.
I prefer to say it was a founding decision.
Slavery, Plessy and Lochner
The second half of the 19th century witnessed at least two unfortunate decisions by the Supreme Court, which rank as two of its greatest errors. Minister Dino indirectly alluded to both.
At one point, Minister Dino, responding to a Senator, stated the following: “You know that, in the 19th century, the United States Supreme Court legitimized slavery.” Here he was referring to Dred Scott v. Sandford, tried by the Court in 1857, whose decision was written by the President of the Court, Roger Taney, a convinced slaveholder who managed to convince the majority of his peers that “a free Negro, of the African race, whose ancestors were brought to this country and sold like slaves, is not a ‘citizen’ within the meaning of the United States Constitution.” And “consequently, the special rights and immunities guaranteed to citizens are not applicable to them” [17], so they do not have the right to litigate before the United States Courts.
Frederick Douglass considered it “a hell black judgment of the Supreme Court” [18], which could only be overcome by the “court of common sense and common humanity” and with divine help.
Minister Flávio Dino is right, the U.S. Supreme Court legitimized slavery. I would add and with that it precipitated the Civil War, which could not remotely be considered the court of common sense and common humanity, to which Douglass referred.
Still in the judicial activism category, the minister indirectly mentioned the case Plessy v. Fergusson, which dates back to 1896. Some considerations have already been made about it, when discussing the performance of Judge Warren, who led the Court in the Brown case, in 1954, which revoked Plessy.
The Lochner Era was also mentioned by Minister Dino, who noted the activist nature of the Supreme Court’s decision when declaring invalid, in 1905, a New York State law that had limited “bakers’ working 60 hours per week.” [19] He is absolutely right. The case, Lochner v. New York (1905), defined an entire period — hence the name “Lochner Era” — of economic liberalism with little or almost no social concern. It is no surprise that Melville Fuller, the judge who authored the decision, was a conservative close to the economic power that dominated New York society at the time. The declaration of unconstitutionality of state law, under the pretext of legislative interference in contractual freedom, is, by all accounts, an exaggerated reading of laissez-faire, in vogue at the time.
In short, the Supreme Court’s decision benefited the economic power by declaring the unconstitutionality of a law that sought, albeit timidly, to protect bakers from the strenuous job, with long hours of work in an unhealthy environment.
Term, Hugo Black and Bush v. Gore
The theme of the United States and its Supreme Court would still be the subject of three considerations during the hearing. One to respond to a comment about “term” for a Supreme Court Justice in Brazil, at which point Minister Dino stated that “in the United States… there is no term.” And he amended it by remembering that “justice Hugo Black, one of the greatest in the history of the Supreme Court,” served “unless I am mistaken, until he was 84 years old, something like that, on the United States Supreme Court.” [20] He added that in the U.S. the “good behavior” clause is in force, and took the opportunity to draw a parallel with Brazil, which had compulsory retirement for judges at age 70, later changed, by constitutional amendment, to 75 years.
He said that the mandate, “if established, cannot be too short,” because it could affect a “leading principle” of the 1988 Federal Constitution, which is “legal security.” On the topic, he added: “If the composition of the Supreme Court changes, for example, in two years, three years, four years, it is impossible to establish jurisprudence and, therefore, there will be no legal certainty.” [21]
The illustrious minister Flávio Dino is absolutely right with regards to the duration of the Supreme Court Justice’s mandate, should it be established. The length of the mandate may affect legal certainty; furthermore, the turnover of lawyers entering as ministers and leaving the Supreme Court in a short space of time could be extremely detrimental to its functioning and reputation.
The Federal Supreme Court, it is important to highlight, is “responsible” for maintaining Democracy in Brazil at the end of the first quarter of the 21st century. In other words, borrowing a phrase from Professor Flávia Piovesan: “Democracy in Brazil is standing thanks to this House.” [22]
Minister Flávio Dino’s last mention of the oldest, most independent and stable Supreme Court in the world was about the case Bush v. Gore, to highlight that even “with its long jurisprudence,” it does not “escape from questioning, which shows how beautiful the democracy is.” [23] Perfect observation, longevity does not prevent it from being questioned in a debate post Court decision, as long as it is carried out in a civilized environment and in the field of ideas that at the end enriches democracy.
Bush v. Gore is the case that originates in the imbroglio surrounding the counting of ballots in the State of Florida in the 2000 presidential election, which pitted the governor of Texas, George W. Bush, against Al Gore, then Bill Clinton’s vice president. The small margin of votes between one candidate and another in some polls triggered the official recount rule, when the difference is less than 1.0% of the votes, this rule varies from State to State.
The recount brought even more doubts and, in short, there were challenges on both sides and the election remained judicial. The Florida Supreme Court ordered the manual recount of all votes in the State, that is, not just those ballot boxes about which there were doubts. Bush appealed to the United States Supreme Court, which suspended the state court’s stay of execution order. The total recount never took place, Al Gore, in an act of civility and chivalry, recognized[24] Bush as the winner and everyone knows the rest of the story.
The Supreme Court decided by 5 votes in favor of Bush and 4 in favor of Gore, in what American doctrine usually calls a “partisan lines decision,” a pronouncement with a pronounced partisan bias, when judges decide very close to the political current that they have always espoused. This is what happened, for example, recently, in Dobbs v. Jackson Women Health’s Organization (2022), which “overturned” Roe v. Wade, 1973, on abortion.
The Supreme Courts are made up of cells and globules
An indispensable record, even though we know that the article is heading towards being longer than what is considered reasonable in vehicles like this.
Regarding Supreme Courts — it is important to insist — regarding the role that a Constitutional Court plays in true Democracies (these days they are counted by hand) the citizen should never expect, much less demand an irrepressible trajectory, from any of them. The reason is simple, it is a human product, formed by men and women with cells and blood cells.
There are those who make a lot of mistakes and those who lack independence. There are those who, over time, have contributed to the better functioning of the State and its institutions and sought to elevate Human Rights to a special category. The latter include the Supreme Court of the United States, with more than two centuries of history and some mistakes, and in Brazil, the Federal Supreme Court, which assumed an important role since 1988 and has contributed positively to keep Democracy alive in the country. It also welcomes successes and some mistakes.
Annals of the History of the Senate
Still talking about history, but now about the history of Brazil, it is imperative to recognize that in the Federal Senate, on Dec. 13, 2023, a long and rich page of Brazilian legislative, political and judicial history was produced. The Senate, and especially the president of the Constitution and Justice Committee, Senator David Alcolumbre, should be proud of this.
Two great public figures (Flávio Dino and Paulo Gonet), with unparalleled legal knowledge and an unblemished reputation, were “judged.” The result of that hearing unfolds in one hundred and sixteen pages of legal knowledge, prudence and common sense, which will serve as inspiration to the Legislative, the Executive, the Judiciary, the Essential Functions of Justice, the Academy and the people of Brazil.
*João Carlos Souto is Professor of Constitutional Law (UDF), Master and Doctor (suma cum laude) in Law (CEUB), National Treasury Attorney, and author of “Supreme Court of the United States — Main Decisions” (Atlas, 4th ed/ 2021). Note: This is an abridged preview of a chapter from Professor Souto’s forthcoming book, The Supreme Court of the United States in Brazilian Law. An unabridged version was published in Brazil by the Consulto Juridico website.
Footnotes
[1]. Professor Paulo Gonet is one of the greatest Brazilian constitutionalists today. He is a professor of the Masters and Doctorate in Law at IDP (Brasília) and author of a seminal work in partnership with minister Gilmar Mendes. Contrary to the famous phrase by Brazilian playwright Nélson Rodrigues, that once said that “all unanimity is dumb,” Professor Gonet is an unanimity as an intellectual and a human being. This article will mainly deal with Minister Flávio Dino’s hearing, for a simple reason: he cited the U.S. Supreme Court several times, so, as a researcher on the subject for over thirty years, the article reflects the object of my study.
[2]. A great judge, who was also, like Flávio Dino, state governor, before being appointed to the Supreme Court.
[3]. In Brazil is more common the phrase “control of the constitutionality of normative acts,” instead of judicial review.
[4]. MITCHELL, Jonathan F. The Writ-Of-Erasure Fallacy. Virginia Law Review, Volume 104, Issue 5, 2018, p.946. The phrase was uttered in a speech when Hughes was governor of the State of New York, in May 1907.
[5]. The fact that the Constitutional Assembly of 1988 provides the Brazilian Supreme Federal Court with original competence to judge some authorities (art 102 of the Brazilian Federal Constitution), it does not mischaracterize it as a Constitutional Court, even if it is not in the “pure” sense, like in some European Courts.
[6]. DINO, Flávio. Depoimento à Comissão de Constituição, Justiça e Cidadania, 13/12/2023, Notas Taquigráficas. Brasília: Senado Federal, Secretaria Geral da Mesa, p. 12. https://www25.senado.leg.br/web/atividade/notas-taquigraficas/-/notas/r/12230
[7]. Thurgood Marshall made history. In addition to being a lawyer in important cases, like this one, he was a judge on the Second Circuit Court of Appeals (1961/1965), appointed by President John Kennedy. Later Solicitor General of the United States, appointed by President Lyndon Johnson (1965/1967), the first person of African descent to hold that position. In 1967 he became the first black person to sit on the United States Supreme Court, also appointed by Johnson. Cf. WILLIAMS, Juan. Thurgood Marshall – American Revolutionary. New York: Three Rivers Press, 1998, p. 313/316, 334.
[8]. Evidently, this did not happen magically right after the Court’s decision, but without Brown, it would not have been possible or it would have lasted another half century.
[9]. The Senate granted Coney Barret what it denied to Merrick Garland, appointed by Barack Obama in February 2016, to fill the vacancy resulting from the death of Antonin Scalia. They denied to Obama (a hearing to Merrick Garland), nine months before the election because the vacancy was supposed to belong to the president-elect in November 2016. But they voted for a name (Coney Barret) less than 40 days before the 2020 election, to fill the seat of iconic Justice Ruth Bader Ginsburg. About Merrick Garland and the actions of the Senate that prevented him from being questioned, as well as about nominations not approved by the United States Senate, see SOUTO, João Carlos, Suprema Corte dos Estados Unidos — Principais Decisões. São Paulo: Atlas, 4ª edição, 2021.
[10]. DINO, Flávio. Depoimento à Comissão de Constituição, Justiça e Cidadania, 13/12/2023, Notas Taquigráficas. Brasília: Senado Federal, Secretaria Geral da Mesa, p. 12. https://www25.senado.leg.br/web/atividade/notas-taquigraficas/-/notas/r/12230
[11]. THOMAS, Evan. First. Sandra Day O’Connor. New York: Random House, 2020, p. 72.
[12]. HALL, Kermit L. The Oxford Companion to the Supreme Court of the United States. Second Edition. New York: Oxford University Press, 2005, p. 979.
[13]. BISKUPIC, Joan. Sandra Day O’Connor. New York: Harper Perennial, 2005, p. 58/59.
[14]. It is understandable that this would be the case. The idea of Checks and Balances (Separation of State functions) was still not very well understood in 1803. As regards the Judiciary, its real attributions were shrouded in dense darkness. By the way, Chapters II and III (p. 45 to 184) of my book Suprema Corte dos Estados Unidos — Principais Decisões. São Paulo: Atlas, 4ª edição, 2021 (SOUTO, João Carlos) deals extensively with these topics.
[15]. “Although Judicial Review was not mentioned in the Federal Constitution, it was implemented a short time after by the Supreme Court (Marbury v. Madison, 1803), as a natural consequence of the Separation of the Powers and attributions of the Judiciary, according to the lesson of John Marshall, in what is the most cited decision in the history of world constitutionalism and which was and continues to be fundamental for the Judiciary to function as the Guardian of the Constitution.” SOUTO, João Carlos. Constitutional Values in Brazil and in the U.S. in Times of Coronavirus. Pittsburgh: Jurist. Aug. 5, 2020. In https://www.jurist.org/commentary/2020/08/joao-carlos-souto-constitutional-values-covid19/ Accessed on 01.02.24.
[16]. DINO, Flávio, op. cit., p. 41.
[17]. Dred Scott v. Sandford, 60. U.S. 393 (1856), p. 60.
[18]. DOUGLAS, Frederick. The Portable Frederick Douglas. New York: Penguin Classics. Edited by John Stauffer, 2016, p. 253.
[19]. DINO, Flávio, op. cit., p. 41.
[20]. Idem, p. 76. In fact, associate justice Hugo Black served until 85 years old.
[21]. Idem, p. 76.
[22]. PIOVESAN, Flávia. Lecture at the Seminar “35 Years of the 1988 Constitution – Achievements and Challenges.” Brasília: STF, October 5, 2023. Professor Piovesan makes a point highlighting that Brazilian civil society and other institutions were also responsible for maintaining Democracy in Brazil in the 2019/2022 period, especially the last two years of that period. However, she highlights, which I agree with, that the Federal Supreme Court (STF) was fundamental.
[23]. DINO, Flávio, op. cit., p. 77.
[24]. On Dec. 13, 2000, the front page of the most important newspaper in the world printed the following sentence: Gore Concedes in Speech Before Nation. The New York Times, Dec. 13, 2000, p. 1.
