When the court is divided: minimum-winning coalitions in Brazil's Supreme Court/Quando a corte se divide: coalizoes majoritarias minimas no Supremo Tribunal Federal.
| Autor | de Oliveira, Fabiana Luci |
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Introduction (1)
The field of judicial behavior studies began to take shape in the United States in early decades of twentieth century as a descriptive enterprise, recognizing in judicial decisions the action of the political context in which they were taken, and these decisions were viewed not only as influenced by legal aspects, but also by personality, training, preferences, and values of judges (MAVEETY, 2003: 3).
It was only in the late 1940s, from the domain of behaviorist approach ("behavioral revolution"), that judicial behavior studies were consolidated, leaving researchers less concerned with the outcome of decisions and more with the dynamics of decision-making itself. At this point, taking Pritchett's work (1948) as a landmark, a turning point took place in this field of studies, making the focus of discussion no longer the product of judicial decisions, that is, the meaning and content of the judges' decision, but in the decision-making process, that is, what makes the judges decide how they decide (GROSSMAN and TANENHAUS, 1969, apud MAVEETY, 2003: 11). Thus, the search for determinants of judicial behavior has become the central theoretical focus.
In Brazil, interest in judicial behavior earned academic relevance only in the 1990s, when pioneering work (2) about Supreme Court's role in regulating the country's economic, political, and social life began to emerge. And with this, the understanding of decision-making process in this court has become a topic of interest, occupying still small but growing space in the research agenda about Judiciary, not only in Law, but especially in Political Science and Sociology (3).
Studies on STF decision-making process investigate factors that influence the decision of Justices in trial, proposing to map the determinants of judicial behavior and to understand court's deliberative process and collegiate' dynamics (see, as example, OLIVEIRA, 2012a and FERREIRA, 2013).
Recently, after a profound renewal of Supreme Court's composition between FHC's (1995-2002) and Lula's (2003-2010) governments, researchers have also focused their attention to understand presidential appointment influence on how Justices organize themselves to vote (see, for example, OLIVEIRA, 2012b; FERREIRA and MULLER, 2014; DESPOSATO, INGRAM and LANNES, 2015 and ROSEVEAR, HARTMANN and ARGUELHES, 2015).
These works came together for an analysis on decision-making process especially in cases of constitutional control, highlighting judicial review cases (the Direct Actions of Unconstitutionality--ADIs). Researchers have used different time cutouts and criteria for case selection, some analyzing large volumes of cases with dissidence in the collegiate, and others based on cases considered complex, difficult or of great media repercussion.
In terms of theoretical and methodological approach, this work has been based on models developed to understand US Supreme Court's decision-making process, adapted to Brazilian reality--especially the attitudinal and strategic models, influenced by neoinstitutionalism (following three dominant paradigms in American political science and sociology approach to judicial behavior (4)).
So far, the results achieved indicate that judicial decisions are, in fact, reducible to empirically observable concrete events. Therefore, STF research agenda has been increasingly seeking to translate the theoretical dimensions in judicial behavior discussion on tangible aspects.
Now we know, studying large volumes of cases decided by Supreme Court, that factors such as the origin of the law or norm being questioned (whether Federal or State, for example) and its thematic (tax, economic, social security, public servant, etc.) impact on decision-making process. And STF being more likely to reject federal legislation than state legislation, declaring the unconstitutionality of Federal legislation less often, and being more opposed to States occupying a larger space in the federation. We also know that STF has been more receptive to economic-tax issues and public administration, especially in the areas of public service, than to social rights issues (see, for example, OLIVEIRA, 2012a e FERREIRA, 2013).
We also know that the presidential appointment influences coalitions configuration in the Supreme Court, and different compositions, formed from presidential nomination blocs, result in different decision patterns (see, as example, OLIVEIRA, 2012b; DESPOSATO, INGRAM and LANNES, 2015 and ROSEVEAR, HARTMANN and ARGUELHES, 2015).
Other researchers have turned to more qualitative approaches, noting the decision-making process on issues politically costly, difficult cases, complex, or of great media impact. Kapiszewski (2011), for example, analyzed twenty-six cases, concluding that multiple political and institutional pressures influence judicial decisions, developing the tactical balance thesis. For this thesis, judicial behavior interpretation models (legal, attitudinal, strategic and neoinstitutional) are complementary, arguing that both legal and extralegal factors influence judicial decision making.
Kapiszewski states that when judging important cases, STF Justices tend to alternate the contestation of policies that interest the federal government with the endorsement of such policies, and when challenging or favoring the interests of federal government, Justices would have six considerations : (1) your own preferences; (2) institutional preferences; (2) federal government preferences; (4) economic potential or political consequences of the decision; (5) public opinion on the case and (6) legal aspects involved (2011: 472-473).
There are also researchers who discuss decision-making process from its normative and theoretical aspects, deducing from abstract reason the best decision-making model for Supreme Court's collegiate, or discussing the adequacy of theoretical models developed in other national contexts to Brazilian case (see SILVA, 2009; 2013; RIBEIRO, ARGUELHES and PEIXOTO, 2009).
In this article, we enter this discussion considering a systematically unobserved aspect for any of these studies: Supreme Court's decision-making behavior in cases of constitutional control in which "every vote counts" (5). We analyze the totality of decisions about ADIs cases in the 1988-2014 period that divided the Court, that is, in which the margin of victory was given by only one or at most two votes (6).
We deal directly with the Silva's works (2009; 2013), considering the characteristics that the author highlights about deliberative process in STF, to analyze empirical elements and discuss what the author has constructed normatively.
We discussed mainly three aspects that, according to Silva (2013), decrease the deliberative Supreme Court's quality, affecting consequently its democratic legitimacy: (i) the rapporteur's irrelevance; (ii) the absence of a genuine exchange of ideas and arguments between Justices during trial, which according to Silva is evident since rarely a Justice mentions arguments presented by other Justices in his vote, turning court's decision-making process purely aggregating, in which each Justice writes their own opinion and all opinions are published; and (iii) the possibility of interrupting plenary session, before each Justice had the opportunity to express their views on a particular case. For the author, this fact would be aggravated by the regimental disposition of each Justice voting in reverse order of seniority after the rapporteur, which would make it impossible or difficult for Justices to reconsider their votes, that is, to change their position after hearing the votes of their peers (SILVA, 2013: 569).
Besides dialogue with Silva's work (2009; 2013), we rely on theoretical and methodological terms: Riggs' (1993) exemplary study on decisions with a majority coalition in the U.S. Supreme Court.
In the following article, we present an overview of the works with which we dialogue, and analyze judicial review cases (ADIs) that divided the Supreme Court, decided by a minimum-winning coalition, with a margin of one or two votes, to answer the following descriptive questions: how often and in what situations STF was divided in ADIs trials? How were compositions of majority and minority blocs in those situations, i.e., who voted with whom? And how did the dynamics of deliberative process take place? To answer this last question, we mapped: (i) the frequency that a Justice changed its vote direction due another Justice vote; (ii) the frequency with which a Justice made explicit reference to an argument of another Justice; (iii) the frequency and justification of intervening recess throughout decisions, and (iv) the frequency with which rapporteur's vote was followed. With this, we seek dialogue with arguments of STF decision-making process being personalist, a sum of individual votes more than a collegial deliberation.
Answering to these descriptive questions, we have gathered empirical elements to discuss the determinants of minimum-winning coalitions, and to better understand STF decision-making behavior.
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"When every vote counts"
Riggs (1993) examined voting pattern in U.S. Supreme Court considering cases decided by minimum-winning coalitions (with margin of a single vote), a period of 90 years, from 1900 to 1990. In author's definition, a majority coalition is minimal if, given the total number of judges who participated in decision, the change in the vote direction of a single judge would have ability to change the outcome of the decision.
The author identified by applying the criterion above explained, 1,428 cases that divided U.S. Supreme Court, which corresponds to about 11% of total cases decided by this court during these ninety years. Riggs's interest is to understand how minimum-winning coalitions are formed, and whether and how they deteriorate.
A first point to note with Riggs is that, since the Judiciary Act of 1925, US Supreme Court had...
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