‘Dialogue’ as strategic judicial resistance? The rise and fall of ‘preemptive dialogue’ by the Brazilian Supreme Court

Abstract

ABSTRACT How can high courts resist elected leaders with antidemocratic agendas? In this article, I present the Brazilian case as an example of the multiple resources and strategies available in the judicial toolbox to drive interbranch relations in contexts of democratic erosion. While the autonomy of the Brazilian Supreme Court stands out in Latin America, it became a recurring target of right-wing radicals since the ascension of would-be authoritarian Jair Bolsonaro. In this article, I address a preemptive resistance strategy adopted by the court's leadership from the presidential elections of 2018 up to the middle of the pandemic. I establish the rise and fall of ‘preemptive dialogue’as a strategic move, drawing data on off-bench behaviour from a major Brazilian newspaper’s coverage, official statements, and court insertions in social media platforms. While this strategic move was consistent with the historical trajectory of the court’s ‘accommodation’ pattern in interbranch relations, its downfall signals a break with the past. Likewise, it advances the need of adaptive judicial tactics considering the diffusion of court-curbing within electoral democracies with dissimilar historical backgrounds. The conclusion emphasizes the relevance of the case to comparativists addressing judicial resistance in contexts of democratic backsliding.