Luís Roberto Barroso headshot

Justice Luís Roberto Barroso is a Carr Center Senior Fellow and a Brazilian law professor, jurist, and Justice of the Supreme Federal Court of Brazil. He has also served as President of the Superior Electoral Court. Justice Barroso is a leading voice in protecting the electoral process and the democratic institutions of Brazil. 

We sat down with Justice Barroso to learn why democratic constitutionalism is imperiled in many countries around the world, and what we must do to address the threats of authoritarianism and corruption in order to reestablish respect for fundamental human rights.

Over the years, you’ve played a significant role in the protection of minority rights in Brazil. Can you describe how you’ve worked to ensure that those in power better represent the needs and rights of society as a whole?

{LRB} Initially, when I was a lawyer, I participated before the Brazilian Supreme Federal Court in cases defending women’s right to stop their pregnancy when the fetuses were nonviable, the equity of rights between gay couples and heterosexual couples, and affirmative actions in favor of Afro-Brazilians. It was gratifying work, because all of them began as causes with little support and, throughout the years, have conquered public opinion.

“I seek to convince people that these are not progressive causes, but causes of humanity: equal respect and consideration for all people.”

In 2013, I was appointed as a Justice of the Supreme Federal Court. As a judge, I had the opportunity to decide cases concerning the validity of racial quotas in the selections for public office, the decriminalization of abortion, the rights of transgender people to alter their names in the civil registry, the creation of sanitary barriers and priority vaccination for indigenous people during the pandemic, the right of maternity leave for mothers of adopted children, and the Federal Government’s duty to make investments against climate change. In my opinions and lectures, I seek to convince people that these are not progressive causes, but causes of humanity: equal respect and consideration for all people, so that they can flourish and emancipate themselves.

With the rise of populist and far-right movements on a global scale in recent years, many populations have lost confidence in their governments, and political systems have lost credibility. Are you seeing this happen in Brazil? If so, what do you think must be done to prevent deepening authoritarianism in Brazil or worldwide?

{LRB} Certainly, the world is going through a phase which has been identified by several expressions, such as “democratic recession,” “abusive constitutionalism,” or “autocratic legalism,” amongst others. This picture is the product of three different phenomena that, when combined, produce the severe erosion of democracy: populism, extremism, and authoritarianism. It is not about an ideology, but a strategy that divides the society into us—the pure, decent, and conservative people—and them—the corrupt, cosmopolitan, and progressive elite. It is a fallacy, a manipulation, because neither the people nor the elite are homogenous concepts in a plural and diverse world.

The authoritarian extremist populism adopts recurrent strategies, which include: (i) direct communication with its supporters, mostly through social media; (ii) the bypass, disqualification, or co-optation of intermediate institutions, such as the Legislative branch, the press, and civil society bodies; and (iii) the attack on supreme courts and constitutional courts, which have the institutional role of limiting the power of the political majorities.

Even consolidated democracies, such as the United States and the United Kingdom, have suffered setbacks. And Brazil has not been immune to this tendency. Democracy needs to defeat some of its internal enemies, such as poverty, unjust inequalities, and the State’s appropriation by extractive elites who put it to their service. In addition, it needs to raise the new generations’ awareness that dictatorships come with intolerance, censorship, and institutionalized violence and that, therefore, it cannot be a legitimate alternative for political life.

What must happen at the civic society level to reduce corruption and shift the attitude on corruption in politics? What can be done by those in power who want to crack down on corruption?

{LRB} Structural, systemic, and institutionalized corruption has always been a dramatic problem for Latin America. We have, since the Iberian colonization, a culture that does not adequately separate the public and private spheres, resulting in the extractive elites’ appropriation of the State. This appropriation can occur both through public policies that benefit these groups, as well as pure and simple corruption.

Corruption has many causes. In Brazil, one of these causes is the electoral system, which is excessively expensive. Many of the corruption scandals in the country are associated with electoral financing. Therefore, reducing campaign costs with changes to our political system is, certainly, an important measure. There is another chronic problem in the country, which is an oligarchical pact through which the extractive elites protect themselves and leniently accept the deviation of resources, the payment of bribes, and other reprehensible behaviors.

Unfortunately, the Judiciary is also part of the pact, and treats white-collar criminality as less severe, accepting the procrastination of cases until they are thrown out because of the statute of limitations or nullifying those that come to an end. It is a sad picture of accepting the unacceptable. Not long ago there was an important reaction from society and from institutions. Recently, however, the old pattern of nullifications and friendliness with notoriously corrupt individuals has returned. It is crucial to understand, nonetheless, that history is not linear and that perseverance in this matter is the only chance of victory.

Barroso Publication

Further reading

Justice Barroso's Carr Center Discussion Paper "Populism, Authoritarianism, and Institutional Resistance" is an examination of extremism and the role constitutional courts can play in defending democracy.