IS LADY JUSTICE BLIND? READING BRAZIL’S 2012 AFFIRMATIVE ACTION DECISION THROUGH THE STRUGGLE FOR GENDER EQUALITY / A DONA JUSTIÇA É CEGA? LENDO A DECISÃO DE AÇÃO AFIRMATIVA DE 2012 NO BRASIL ATRAVÉS DA LUTA PELA IGUALDADE DE GÊNERO

Abstract

Brazil has boldly embraced affirmative action on a scale never before attempted in in the Americas. Despite this innovation, scholars have not analyzed this surprising development in a rigorous and grounded fashion. This essay seeks to delve deeper into the Brazilian Supreme Court’s (STF) 2012 decision (acórdão) to uphold the University of Brasilia’s racial quota system against allegations by the conservative Democrat Party (DEM). The DEM argued that such a system of affirmative discrimination violated a “fundamental [i.e. constitutional] precept”, a procedure of relief and remedy that serves as a last resort for resolving constitutional disputes. The unanimous decision came as surprise to most Brazilian observers both for its broad ideological consensus and for its explicit endorsement of racial quota policies in a country that still widely regarded itself as relatively free of racial tensions and biases. Closely analyzing the judges’ final opinions (votos), this essay makes the case that the decision’s unanimity came from a constellation of metaphors and constitutional philosophies. These metaphors and philosophies, at times in tension, coalesced to form a coherent defense of protected identity classes and the state’s duty to protect them. In fact, the decision served to converge two categories of affirmative action that previously had operated on parallel tracks: Racial and gender quotas. Finally, each vote relied on concepts of difference and equality (in the feminist sense) to arrive at a decision favorable to quotas.