Disagreement on the Brazilian Supreme Court: An Exploratory Analysis

Abstract

In this paper we examine the decision-making of the Brazilian Supremo Tribunal Federal using a novel dataset of individual-level votes in collegiate decisions issued between 1992 and 2013. In doing so we find limited evidence of greater cohesiveness or lower propensity to dissent among professional judges appointed to the Court than appointees with other legal backgrounds. There are, however, indications of two partisan voting blocs: appointments made by President Fernando Henrique Cardoso and the pre-1985 military government. We also find systematic differences in cohesion across the three jurisdictions of the Court: cases involving abstract review are the most divisive while those based on the Court’s appellate jurisdiction are the least. However, when only the decisions of the plenary court are considered, the appellate jurisdiction is the most divisive. We also find a negative relationship between dissent and caseload, a positive correlation between court size and willingness to dissent and, in contrast to expectations, that greater variation in who appointed the members of the Court was associated with a more cohesive court. With respect to institutional reform, there is evidence to suggest that the introduction of television cameras into the plenary sessions of the Court resulted in a higher level of agreement. However, the effect appears to have been temporary. Contrary to previous findings we find that the introduction of weak forms of precedent via constitutional amendment is not correlated with a decline in overall cohesion on the plenary court. We also find that an increased level of ideological difference in the governing coalition of the federal government is correlated with increased disagreement on the court, a relationship that is supportive of the idea of strategic decision-making on the Court.