Monday, December 22, 2014
Between “Juristocracy” and the “Court for the One Percent”: The Brazilian Federal Supreme Court and the Narrative of Economic Inequality
The following guest post was written by Professor Juliano Zaiden Benvindo of the University of Brasilia, Brazil.
Studies on inequality are often appealing. Either because they reveal how human nature and overall society strategically behave or because they might affect us by some means, we are usually receptive to this debate. The recent impressive bestselling book Capital in the Twenty-First Century, written by the French economist Thomas Piketty, in which he “devoted essentially to understanding the historical dynamics of wealth and income” is a clear example of how powerful and influential a thesis on wealth and income inequality can be. At times of increasing inequality in different parts of the world, this result is naturally enhanced, and it is no wonder that other interesting connections with this debate appear here and there. Constitutional law is no exception. As it directly affects the debate over justice and resource distribution, numerous papers have attempted to explain how this rise of inequality sparks serious outcomes in constitutional law, and how legal institutions behave in such critical moments. The recent Michele Gilman’s A Court for the One Percent: How the Supreme Court Contributes to Economic Inequalityas well as Adam Lioz’s Breaking the Vicious Cycle: How the Supreme Court Helped Create the Inequality Era and Why a New Jurisprudence Must Lead Us Outfollow this path. The argument they raise stems from the perception that the US Supreme Court has clearly furthered economic inequality in distinct areas of social life and “eviscerated key protections that prevent wealthy interests and individuals from translating economic might directly into political power.” This perception may also be transposed to other constitutional realities, especially where social inequality is historically a serious issue. How inequality and Supreme Courts’ decisions intertwine with each other is indeed a matter that deserves further analytical approaches. For in the end this concerns the very legitimacy of Supreme Courts, as long as the argument of protection of minorities can fall apart, empirical and theoretical investigations as such gain more significance.
Those works connecting inequality with US Supreme Court’s decisions find strong evidence that the United States is facing a vicious cycle wherein, ultimately, the democratic process is structurally afflicted, as it is “helping to protect a very powerful minority at the expense of the majority.”  Although not directly examining the US Supreme Court, it is interesting to observe that Ran Hirschl’s thesis of his masterly book Towards Juristocracy had already shed some light on this discussion through the emphasis on the “self-interest hegemonic preservation” of threatened political, economic, and judicial elites. His diagnosis has proven not only correct as regards constitutionalization and judicial review and how elites make use of them, but also the conclusion that this movement “has utterly failed to promote progressive or egalitarian notions of distributive justice in a meaningful way” coheres somehow with those more recent academic studies on inequality. Besides, as a natural outcome of this “hegemonic preservation” of elites, inequality appears as a structural feature of extractive institutional practices as they deviate from the course of full inclusion of disadvantaged and excluded social groups. To not include these groups becomes thereby a strategy of self-preservation, and the Supreme Court, as well as other political and legal institutions, a tool for strengthening this strategy. The above mentioned vicious cycle is well portrayed in this environment, and it becomes more evident in societies where inequality strongly prevails.
In this respect, Brazil seems to be faced with similar dilemmas. It is well known that Brazil is one of the world’s most unequal countries, despite its expansion of income and employment in the last years. Even so, according to the Brazilian Institute for Geography and Statistics (IBGE), in 2012, while the richest 10% of the population absorbed 41,9% of total income, the poorest 10%, in turn, only appropriated 1,1% of it. Another influential study revealed that, between 2006 and 2012, the richest 1% absorbed 25% of all income, and that some stability in the income distribution was maintained. Moreover, according to this article, “the richest are more resistant to decline in inequality than the rest of the population.”  The struggle between social groups is thereby visible and it is no surprise that there is a sort of “hegemonic preservation” of elites being undertaken by the Judiciary, and particularly the Brazilian Federal Supreme Court. Many of the conclusions those above studies have drawn, albeit the contextual differences, apply here too. The richest, who are the most resistant to change, will make use of the legal institutions as a form of “hegemonic preservation,” setting thereby limits on the achievements of other social groups towards inclusion. There is possibly a strong connection between Brazilian Federal Supreme Court’s decisions and inequality, even though, as it happens in the United States, the mainstream literature still keeps saying that the Supreme Court’s role is to protect minorities and further distributive justice, and that history has proven it so.
The diagnosis Michele Gilman presents that “the judicial branch is rarely part of the narrative of economic inequality, despite its significant impact” is fully harmonized with the Brazilian reality. For example, Gilmar Mendes, one of the most influential scholars and a Justice of the Brazilian Federal Supreme Court, categorically says that “nowadays, we have such a complete and well-structured defense system for the Constitution that, in particular cases, it meets the needs of today’s most advanced legal doctrines entirely,” and this is particularly due to its capacity to protect citizen’s rights, freedoms, and guarantees. The subsequent argument in favor of Brazilian Federal Supreme Court’s more activist behavior, as it has proven real in the last years, turns out to be easily accepted and repeated by the mainstream literature. Still, as long as empirical analyses start to pop up, this magical aura surrounding the Supreme Court’s activities literature creates comes into conflict with the reality. Especially, the narrative of economic inequality plays an interesting and significant role against this discourse. The question is: Has the Supreme Court really protected minorities and furthered distributive justice? Or, on the contrary, has it spurred inequality by protecting the interests of hegemonic social groups against any possibility of creative destruction of their status quo?
By placing side by side the mainstream literature and empirical analyses, the second question seems, at first glance, more accurate. This obviously does not mean that the Brazilian Supreme Court did not protect minorities and further distributive justice whatsoever. Yet, a recent study carried out at the University of Brasilia, concluded that, at least in the centralized system of judicial review, from 1988 to 2012, only 11% of all cases judged favorably were indeed in the field of basic rights, but, even in those cases, about 60% of all decisions were related somehow to corporate interests. In the diffuse system of judicial review, researches are still to be made, but it is already clear that in the specific areas of market and corporations, unions and labor law, health, taxes, and property, just to name a few, we could find a tendency to favor the interests of capital. Therefore, that argument that, in Brazil, “we have such a complete and well-structured defense system for the Constitution” just gives one side of the story and ought to be challenged and revisited.
Comparative constitutional law is faced with the dilemma of examining the movements of Supreme Courts towards activism, on the one hand, and their practices of furthering inequality, on the other. After all, at the core of this debate lies the argument of their legitimacy. But it also shows the strategic behavior of social groups who are somehow making use of the legal institutions to keep their comfort zones untouched. As Gilman says, this has a “significant impact.” In years of “[Courts] for the One Percent” and “Juristocracy”, that narrative of economic inequality and the narrative of supreme courts have to effectively work together.
 Thomas Piketty, Capital in the Twenty-First Century vii (The Belknap Press of Harvard University Press. 2014).
 Michele Gilman, A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality, Utah Law Review, 1 (2014).
 Adam Lioz, Breaking the Vicious Cycle: How the Supreme Court Helped Create the Inequality Era and Why a New Jurisprudence Must Lead us Out The Changing Landscape of Election Law, 43 Seton Hall L. Rev. 1227, 1231 (2013).
 Gilman, Utah Law Review, 1 (2014).
 Hirschl’s focus is on Canada’s. Israel’s, New Zealand’s, and South Africa’s constitutional experiences
 Ran Hirschl, Towards Juristocracy : The Origins and Consequences of the New Constitutionalism 11-12 (Harvard University Press. 2004).
 Id. at, 14.
 See Daron Acemoglu & James A. Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty (Crown Business. 2012).
 Instituto Brasileiro de Geografia e Estatística (IBGE), Síntese de Indicadores Sociais: Uma Análise das Condições de Vida da População Brasileira 2013. Rio de Janeiro, 2013, p. 173. Available at: http://www.ibge.gov.br/home/estatistica/populacao/condicaodevida/indicadoresminimos/sinteseindicsociais2013/ (Accessed December, 17th).
 See Medeiros, Marcelo; Souza, Pedro H. G. F.; Castro, Fabio Avila. O Topo da Distribuição de Renda no Brasil: primeiras estimativas com dados tributários e comparação com pesquisas domiciliares, 2006- 2012, p. 13. (August 14, 2014). Available at SSRN: http://ssrn.com/abstract=2479685
 Id. at 13, 24.
 Gilman, Utah Law Review, 75 (2014).
 Gilmar Ferreira Mendes; Inocêncio Mártires Coelho; Paulo Gustavo Gonet Branco, Curso de Direito Constitucional 208 (Saraiva, 2009) [Translation]
 See Acemoglu & Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty. 2012.
 See Costa, Alexandre and Benvindo, Juliano Zaiden, A Quem Interessa o Controle Concentrado De Constitucionalidade? - O Descompasso entre Teoria e Prática na Defesa dos Direitos Fundamentais (Who is Interested in the Centralized System of Judicial Review? - The Mismatch between Theory and Practice in the Protection of Basic Rights) (April 2014). Available at SSRN: http://ssrn.com/abstract=2509541 or http://dx.doi.org/10.2139/ssrn.2509541
 Brazil adopts a mixed system of judicial review. The diffuse system is largely inspired by the American model, while the centralized one bear some resemblance to the ones utilized by European Supreme Courts. The workload is clearly concentrated on the first system, but the second is, at least according to the mainstream literature, the most important. See what Gilmar Mendes says: “from 1988 onwards, however, it makes sense to think of a mixed system only if one is aware that the basis of this system must rest on the centralized model.”(Gilmar Mendes, Jurisdição Constitucional XII (Saraiva, 2005) [Translation] .