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

The Brazilian Supremo Tribunal Federal (STF) was created in 1890 as a major pillar of republican government and survived through multiple constitutional settings and even authoritarian regimes. The surprising institutional resilience of the judicial organization stands out in Latin America, and the high court is almost a proxy of judicial independence in the Region. Markedly, though, the court became a recurring target of right-wing radicals since the ascension of would-be authoritarian Jair Bolsonaro, culminating in the tragic invasion of its historic building and the destruction of its premises by terrorists on January 8th, 2023. The court and its judges did not follow this process silently. In this paper, I address a peculiar informal resistance strategy adopted preemptively by the court's leadership since the presidential elections of 2018 up to the middle of the pandemic. I establish the factual rise and fall of this strategic move empirically, drawing data from (i) articles from the two major Brazilian newspapers (Folha de S. Paulo and O Globo) and (ii) official pronouncements by court members. I show that the court's leadership advanced a "theory of institutional dialogue" to accommodate the contentious relationship with the proto-authoritarian president. This move was consistent with the historical trajectory of the STF in interacting with elected leaders through an "accommodation pattern" (Kapiszewski 2011). Nevertheless, the effort proved ineffective in addressing the Executive Office and its allies. The rise and fall of this informal resistance strategy provide strong evidence of (i) the mobilization of constitutional theories for strategic goals by constitutional judges and (ii) the limitations of informal resistance strategies when high courts become the target of anti-democratic leaders. Furthermore, I claim that this recent development points to the necessity of more strict and formal judicial strategies in facing democratic erosion. Advancing a "concentric" effort in constitutional studies (Dixon 2016), this study claims that the Brazilian case is valuable to comparative judicial politics literature in depicting a strategic and political use of "dialogic constitutional theories" and in making explicit the conditions and limits of informal resistance strategies adopted by constitutional judges in contexts of democratic decay.