The Federal Supreme Court convened last Tuesday to address an institutional crisis. After nearly eight hours, it left the central issue unresolved and—perhaps more importantly—showed the country a divided Court facing a situation for which its own rules do not provide sufficiently clear answers.
The September 15 session may be remembered less for what it decided than for what it revealed.
The trial was supposed to address information related to Justice Alexandre de Moraes that had come to light in the Banco Master case. It ended up encompassing questions involving André Mendonça, discussions about recusals, conflicts of interest, the role of the reporting justice, equal treatment, and even the conduct of the court’s president. The merits of the case were not even examined, and a motion for further review brought the session to a close.
Disagreement is inherent in the nature of the courts, which exist precisely so that people can disagree. The problem begins when legal disagreement becomes intertwined with personal conflict and when the rules intended to govern the conflict themselves become part of the dispute.
Transparency isn't a spectacle
In *The Tyranny of Glass*, I have already addressed the paradox of a society that has come to confuse transparency with constant exposure. The Supreme Court session provided an almost laboratory-like demonstration of this phenomenon.
Brazil has made a unique choice by turning its Supreme Court trials into live-broadcast events. Government must be held accountable, and public decisions must be made known—which requires transparency, a concept distinct from spectacle.
Television has quietly changed the nature of the Supreme Court. Justices who once spoke only for the record and to their peers now also speak to millions of viewers, social media, and the press.
This shifts incentives. A vote can become rhetoric, and disagreement can become a performance, while legally precise language gives way to statements designed to make an impact.
In *Toga, Camera, Action*, I wrote about this risk. On Tuesday, it ceased to be a mere possibility.
The Illusion of Truth
We should also have learned something from Operation Car Wash.
It may have been one of the greatest institutional mistakes in the recent history of the Brazilian judiciary. It left a legacy of serious violations of constitutional guarantees and highlighted the danger of trials influenced by strong public pressure, when a narrative takes on the appearance of truth even before it has been properly tested through the legal process.
Facts, testimonies, and accounts that were presented for years as definitive were later overturned, revised, or called into question once again.
The lesson should be brief and lasting: rules exist to protect, and using them to give the appearance of legality to the very violation that undermines them renders them meaningless.
Judicial truth cannot depend on public acclaim.
A Supreme Court Without Rules to Adjudicate the Supreme Court
The STF’s Internal Rules of Procedure establish the Plenary’s jurisdiction over situations involving its justices, but do not provide sufficiently clear answers to all the questions that arise when a potential investigation involves members of the Court itself. Tuesday’s session made this gap evident.
The National Council of Justice exercises administrative and disciplinary authority over a large part of the judiciary. Supreme Court justices, however, are not subject to its disciplinary authority. At the top of the judicial hierarchy, therefore, the Supreme Court itself must determine how to handle situations involving its members.
This loophole should not be turned into a scandal, since the law does not claim—nor would it be able—to anticipate every situation that reality might produce. Constitutions, laws, and rules of procedure contain loopholes because institutional life is always more complex than any legal text.
If it has not been necessary until now to regulate a situation of this nature in detail, there is nothing unusual about the Rules of Procedure not providing all the answers.
The issue begins now. Faced with a new situation, the gap has become a reality, and it is the institution’s duty to fill it properly, without wasting time looking for someone to blame.
When the controversies surrounding the Master case reached Dias Toffoli, the justices met behind closed doors. When they reached Alexandre de Moraes, a different approach was taken: an extraordinary public session that was televised.
There may be legal grounds for different treatments, since the principle of equality allows for different procedures in different situations. Going forward, any differences must be based on clear, general, and recognizable criteria.
Because now the inevitable question arises: what will the rule be?
Information related to the Master case has already reached other members of the Court, albeit under different circumstances and to varying degrees. How will any future developments be handled?
A closed-door meeting or a public session? Who will serve as the rapporteur, and will there be a drawing to determine the role? What will be the chairperson’s role? How will conflicts of interest and allegations of bias be handled? Who authorizes any investigation, and if one is opened, who will subsequently adjudicate it?
Or will a third procedure emerge?
First, the rule. Then, the case.
The Supreme Court has reached an institutional crossroads that can be navigated without turning into a crisis.
Perhaps the biggest mistake right now would be to allow public outcry to dictate the pace and manner in which these rules are developed. It is understandable that society wants answers. That does not mean the court should provide them before establishing the proper procedure.
The urgency stemmed more from an institutional need than from public pressure.
Before judging people, we need to establish the procedure.
This means distinguishing between three stages: formulating the rule, making the rule public, and applying the rule to a specific case.
The first requires dialogue and the ability to reach a compromise. The second requires transparency. The third requires due process.
Combining all three in a live broadcast may have been one of the problems with Tuesday's session.
One possible institutional solution would be for the Chief Justice of the Supreme Court to create the conditions for the Court to reach a consensus, in private, on the procedure and then to formalize general, impersonal, and public rules, preferably through a clear amendment to the Rules of Procedure.
First, the rule. Then, the case.
The reservation would be limited to consensus-building, with the rule and the judgment remaining outside its scope. Decisions that are legally required to be public would remain public, and the procedure and its rationale would be made known.
Collegial institutions need spaces for deliberation. Transparency does not require that every conversation be turned into a broadcast.
The problem is that reaching this consensus has never seemed so difficult.
Tuesday's session revealed a deep internal rift within the Supreme Court. Legal disagreements were intertwined with personal accusations, long-standing mistrust, and disputes over the very authority of its members.
Rules established during a conflict run the risk of appearing to be tailored to or directed against someone. That is precisely why they need to be general.
The Invisible Heritage
In *Presidencialismo de Toga*, I addressed the Supreme Court’s expansion into spheres that are increasingly close to politics. The greater the power an institution acquires, the greater its capacity for self-restraint should be.
When an institutional issue involves the Supreme Court itself, there is no higher judicial authority to resolve its shortcomings. This makes it all the more important to develop a lasting solution, which is within the Court’s own power to achieve.
Supreme Courts have neither an army, nor the electoral legitimacy of a parliament, nor the executive power of a government. Their greatest asset is more fragile: trust.
And trust depends on society being able to believe that the same rule would apply even if the names were different, even if it disagrees with specific decisions.
Operation Car Wash should have taught us about the danger of the illusion of truth. Tuesday’s session revealed another: the illusion of transparency. Putting everything in front of the cameras does not necessarily make an institution more legitimate.
Sometimes it has exactly the opposite effect.
The Supreme Court may take as long as necessary to answer the questions society poses to it, provided it first determines the rules by which it will answer them.
The institution responsible for defining the constitutional limits of power has reached a new situation in which it must define the procedures applicable to itself.
There's nothing scandalous about that. Institutions also learn from situations they've never faced before.
The challenge is to find a rule that will remain valid even when we no longer know who the next minister will be—rather than having one rule for Moraes, another for Toffoli, and a third for whoever comes after them.
Because, rather than through solutions tailored to each individual, institutions are protected by rules established through consensus and balance, so that they may endure.
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