Judicialization of politics in the case of exemption reflects limits of the Lula government

When we talk about the balance of the Powers of the Republic, we tend to think that it is possible to find an ideal, neutral point, in which the three forces (Executive, Legislative and Judiciary) are perfectly balanced. It is not how it works. Political scientists have identified a cyclical phenomenon, in which the checks and balances of the democratic system tip the scales more towards one of the Powers depending on the circumstances. Even in the most advanced democracies, sometimes the Executive is the protagonist, sometimes the Legislative Branch assumes primacy, sometimes it is the Judiciary that predominates. Over time, the reaction of the other Powers to the excessive vigor of one of them once again changes the entire arrangement of forces.

There is a perception in Brazil, currently, that the Judiciary stands out above the other Powers, at the same time that the Legislative Branch drains budgetary responsibilities from the Executive and seeks ways to contain the advancement of the judiciary. The newest episode in this three-pronged tug of war is the dispute over the continued exemption from payroll taxes for municipalities and companies in 17 sectors of the economy.

The measure, approved by Congress, represents a hole of almost R$16 billion in the government’s accounts in 2024 alone. President Lula vetoed sections of the law, Congress overturned the vetoes, the government appealed to the STF, and the latter, in a monocratic decision by Minister Cristiano Zanin, suspended the measure. The matter is now in the virtual plenary of the Supreme Court, which also received an appeal against the suspension on the initiative of the president of the Senate, Rodrigo Pacheco (PSD-MG).

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The Lula government may be correct on the merits, but Pacheco is right on form. The political game presupposes negotiations between the government and the Legislature in search of a consensus. The government does not always win. Giving the STF the possibility of giving the final word when nothing else can be done in the field of politics means giving unelected judges a power greater than that of parliamentarians, the representatives of the people. That’s how Pacheco interpreted the maneuver. “This fueled the phenomenon of the judicialization of politics,” he said.

Another who used the expression was deputy Joaquim Passarinho (PL-PA), president of the Parliamentary Entrepreneurship Front: “The judicialization of politics symbolizes a setback in social and economic terms,” he said, taking the opportunity to add that the government’s decision to resorting to the STF to suspend the overturn of the veto in Congress only increases and prolongs tensions between the Executive and Legislative branches.

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The judicialization of politics is not a new phenomenon nor is it exclusive to Brazil. It is often confused with another very fashionable expression, judicial activism. But there is an essential difference between them: judicial activism is best understood as the usurpation of powers from other Powers by willful judges. In the case of STF ministers, this occurs, for example, when they make a creative interpretation of the Constitution, expanding its original meaning, to obtain the result that they believe is correct and best for society. The judicialization of politics does not necessarily occur based on the will of a judge or minister of the Supreme Court. There are other, even more frequent circumstances that lead the Court to arbitrate conflicts in the political field.

One of them is the trend towards decentralization of public administration and the profusion of state bodies at all levels of the federation, in addition to the diversification of bodies that formulate public policies. As a result, controversies between municipalities and the federal government or between different State bodies end up having to be decided in legal action. There is also judicialization from the bottom up, that is, the phenomenon that leads citizens and social movements to try to secure their rights through the courts, instead of the more costly work of convincing politicians through lobbying or increasing parliamentary representation.

What was seen in the Lula government’s decision to appeal to the STF to suspend the exemption from the payroll of companies and municipalities, in turn, was the judicialization of the policy from top to bottom, that is, when one of the Powers transfers to the Judiciary the resolution of disputes that it is unable – or unwilling, to avoid political weariness – to resolve through negotiations with a third Power. This transfer can occur actively, as in the case of the appeal against exemption, or through inertia, when the government, for example, allows parties or unions to challenge a law approved by the Legislature in the STF.

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In a system where almost everything in life can be judicialized, it is natural that politics can too. Therefore, the judicialization of politics is a common phenomenon in democratic countries. Some factors can exacerbate this trend, such as the fiscal problems faced by the government, corruption scandals involving the political class, the greater organizational capacity of social movements and the tangle of often contradictory laws that are put into force at all times.

In the case of the judicialization of top-down politics promoted by Lula, it is a reflection of the fragility of his articulation with Congress and an attempt to put something in place of the coalition presidentialism that allowed him to govern in his first two terms. It is an attempt to rebalance his power vis-à-vis others.