Trump is right about Brazil

The Trump administration’s recent tariff threat against Brazil, coupled with his sanctioning of Justice Alexandre de Moraes through the Magnitsky Act, has many wondering why he picked a fight against another country's Supreme Court.

Is this just petty spite, after Rumble — his pet social media project — was banned? Is he just angry that his ally, former Brazilian President Jair “Trump of the Tropics” Bolsonaro, will likely be jailed? Or is the Trump administration right in claiming that the court has undermined the rule of law and the very Constitution it was sworn to protect?

Surprisingly, Trump’s criticism of Brazil's court is largely correct.

In recent years, Brazil’s Supreme court has become the most powerful institution in the country. It investigates, accuses, censors, and legislates. It is now acting as judge, jury, and executioner.

What may not be obvious to outsiders is that this apparently unprecedented power-grab bears all the hallmarks of Brazil’s 500-year legacy of patrimonialism. Not only does the court issue arbitrary rulings, but it also extends the Brazilian tradition of empowering an all-powerful, censorious, long-standing elite.

This modus operandi started early in our history. With the Portuguese metropolis on the other side of the ocean, colonial plantations, governed by the farming elites, became the closest thing Brazil had to a state apparatus. Political power followed economic power. Political authority legitimized by royal titles passed from one generation to the next — entrenched indefinitely.

Similar patterns of absolute, longstanding power continued after Brazil's 1822 independence. For the nation’s first sixty years, "friends of the king" dominated Brazilian politics. They issued judicial decisions, controlled parliament, and counseled the king, all to serve the interests of their class, and under the protection of life-long, royal titles.

But they also added a new layer to Brazilian politics: control over public opinion. The first law against the press was passed in 1830, sanctioning publications that violated “good customs” under penalty of prison. This vague standard gave the "friends of the Emperor" discretion to, in the words of famous Brazilian novelist José de Alencar, "fabricate public opinion in Brazil.”

The nation’s transition to republicanism also proved unable to break with patrimonial politics. For its first forty years, the presidency alternated like clockwork among the leading coffee and dairy producers. With federal authority far outweighing that of states and checks on the executive almost non-existent, supreme power was firmly entrenched among the coffee-and-cream elite.

Censorship also became part and parcel of the regime. The first penal code created a special category outlining “crimes of the press.” By 1923, that coercive power had escalated to the private domain — editors could be held personally liable for content published in their newspapers.

When Brazil turned toward authoritarianism, a new absolute, long-standing ruling class emerged. In the 20th Century, Getúlio Vargas and his cronies obtained unchecked dictatorial power for an uninterrupted 15 years. The military establishment acquired similar access to the levers of power for more than 20 years. Censorship continued apace. News outlets were banned, pro-government newspapers were subsidized, and anti-state opinions were criminalized.

Although regimes changed, patrimonialism endured — and today is no different.

The first signs of the new patronage system appeared in 2019, when the court expanded its jurisdiction to unprecedented levels. Under the oft-cited "Fake News Inquiry," Justice Moraes acquired broad investigative authority. Citizens were arrested, journalists silenced, and the Federal Police began answering directly to the Supreme Court. With no end date in sight, the Inquiry has allowed Moraes to adjudicate indefinitely, unilaterally and supremely — with no appeals process to check his authority.

Beyond acquiring broad jurisdiction, the court has also usurped legislative powers. Six years ago, it singlehandedly criminalized homophobia. Last month, it proposed guidelines for the regulation of social media. And, later on, Justice Gilmar Mendes sent recommendations to members of the congress on how legislators should treat indigenous lands.

But the patronage only came into full display when the court acquired control over public opinion. The broadcasting network Jovem Pan was suspended for accurate reporting, including its reporting on the arrest of then-former President Lula da Silva. The platform X (formerly Twitter) was temporarily blocked for refusing to remove criticism of Justice Moraes himself. And the court’s new plan to hold open-source platforms directly liable for user publications harkens back to the law of the press from a century ago.

To crown it all, justices hold appointments until age 75. And so beyond expanding its functions, the court does so with guaranteed terms and little to no accountability.

The question is why the turn back toward patrimonialism? Why censor, legislate, usurp the separation and balance of powers?

As a nascent democracy, Brazil was left with many political issues undecided. With a flurry of political parties and the consequent difficulty of political negotiation, its congress was happy to defer contentious issues to the ostensibly neutral, unelected court.

With broad legislative inertia, the court quickly took the jurisdiction granted by the congress as a license to lead the nation or, in the words of its chief justice, “push history forward.” Justices increasingly justified decisions based on policy outcomes — labor market effects, defense of democracy, and political harmony, for example — rather than citing constitutional justifications. 

The cour turned the Constitution into a tool for pushing the "right" ideas, not lawful ones. Amidst all this, Brazil's congress and executive sat on their hands.

So, when the threat of far-right extremism reared its head, the court once again accepted a mandate to lead and defend Brazil. Touting the defense of democracy, it banned right-wing media outlets that threatened to sway the election in Bolsonaro’s favor and suspended social media outlets that criticized the court itself.

With no resistance, boundless jurisdiction, and an inflated sense of existential peril, ambition ran wild. In the end, there was no one left to guard the guards.

Now, this all-powerful, censorious and long-standing guardian is Brazil’s new patron. It does not respond to government overreach, it embodies it. It does not defend freedom of speech but instead violates it. It does not advocate for transitions of power but is anathema to them.

Under the overbearing weight of patrimonial politics, Brazil is no longer a government of laws, but of men and women who wear cloaks.

Felipe Jafet is a political science and history student at Stanford and a student research analyst with the Hoover History Lab at the Hoover Institution at Stanford University.