During the development and improvement of modern democracies, attention was focused on Representative Power. The Legislative Body has always been the vector of legitimacy and sovereignty, that is, the apex of the very idea of democratic government. Since the incremental reforms in the English model, there has been an increasing improvement in Parliament, whose power was gradually shared with the Monarchy until its current institutional design, under the aegis of the principle of parliament’s sovereignty, that is, the Legislative has the last word.

In contrast to the British model, Madison developed a system of checks and balances where the Legislative would be separate from the Executive and judges allocated in a higher court would control the other powers through the exegetical application of the Constitution. In other words, the sovereignty of the parliament would give way to the supremacy of the constitution. Under the aegis of this principle, Madison and Hamilton, with a strong participation of the American Supreme Court itself ² , designed a model that gave the Judiciary the last word in the decision-making process, through judicial review. The common law system itself contributed to the establishment of the American Supreme Court, and, especially after the Marbury v. Madison case, the limits and scope of its activities within the framework of the other powers’ act review.

This model of control by judges proved to be quite effective and widespread in the period after the second war, because it was able to inhibit the majority passions, preventing dangerous, but legislatively majority politicians, from gaining power, as in the case of Germany in the Nazi period. Thus, the classic collection by Tate & Vallinder (1995) was the first academic effort aimed at understanding the causes and consequences of this process, which had gained global dimensions. In other words, with regards to Western democracies, parliamentarians were no longer the last word in the decision-making process, more and more judges were playing a central role in this dynamic. It is a segment with strong political and social ascension, specially selected to compose a judicial body with special competence ³ .

Brazil followed this global movement of Judiciary expansion and by 1988, in its constitutional design, combined two models of judicial review, the American model and the concentrated Kelsenian model, which in the original design was exercised by an administrative body outside the three powers, but in Brazil it ended up in the hands of the same body that was responsible for the North American type of review. This is how the current Supreme Federal Court (STF) ⁴ emerged. However, this model did not appear randomly or accidentally. The national record of democratic disruptions and political instability would play a major role in empowering our supreme court ⁵ . The main question of this research is directed to how and why the Supreme Court became so powerful. Who provided the STF with more power, the Executive or the Legislative? What effect does the political regime have on this increase in power? The main hypothesis is that political party fragmentation has made the Legislative and Executive endow the STF with sufficient power to protect elites who leave power, as well as avoid congressional gridlocks, endowing the supreme court with the capacity to resolve decision impasses in order to guarantee the fluidity of the political system, removing decision paralysis.

To test these hypotheses, a database was set up comprehending the years between 1945 and 2015, where each year is an event and in which seventeen exogenous variables are measured, among which we highlight five indicators of institutional empowerment of the STF and the Judiciary, three measures for party fragmentation through the effective number of parties (NEP - from the term in Portuguese “Número Efetivo de Partidos”), the minimum number of parties to implement constitutional change (NMP - from the term in Portuguese “Número Mínimo de Partidos”) and the Douglas Rae fractionalization index (F) ⁶ , as well as two variables of political competition (polyarchy and political competition) and a control binary variable for political regime. Interactive terms were also created to capture the marginal effects of the regime. Thus, the article is divided into three sections, after that introduction (I). In the second section, we go through a brief analysis of the evolution of the judiciary in general, and in Brazil in particular. In the third section we return to the institutional debate and explore the data, and in the fourth one we run the models and deliver the analysis. Finally, we bring the conclusions (V) and final considerations.

In the year 1752, Montesquieu recorded within three powers the Judiciary is, to some extent, close to nothing. His work, the classic The Spirit of the Laws, would become a landmark in the theory of the separation of powers. In fact, Judges did not occupy a prominent place in the construction of models of democracy, either in Classical Antiquity or in the post-absolutism period. Not even James Madison in his federalist articles had thought of giving the Supreme Court so much prominence, which, in his institutional design, operated as a mechanism for checks and balances within the federative-presidential logic of the North American model. It was a set of judicial decisions ⁷ that built, through precedent, the strength that the American Constitutional Court started to exert over other powers. These cases were seminal, not only to reinforce checks-and-balances, but also to illustrate the Supreme Court as a policy maker, as outlined in Robert Dahl’s seminal article ( Dahl 1957).

While the diffuse North American judicial review model found a favorable environment in the common law system, which allows the Judiciary to innovate in Law through the rule of precedent, the civil law model required a positive institutional design through the Legislative, which in a way prevented the Judiciary from self-empowerment. It was in 1920, in Austria, that Hans Kelsen and Carl Schmitt had an intense debate ⁸ about the adoption of a model of judicial intervention that was not as strong as the one of the United States. So the concentrated-ABSTRACT model emerged in Austria, where a body outside the Judiciary, but holding last word on the Constitution, would have as its main prerogative to protect it from conjunctural majorities, seeking to provide legal stability over time. However, this debate only gained worldwide proportions after the Second World War, when European nations found themselves weakened by the Sovereignty of Parliament principle ⁹ , and sought a model that would protect them from populism and from the appropriate legislative majorities. From then on, the Madisonian institutional design enshrined the Principle of Supremacy of the Constitution, which started to be adopted by several European and Latin American countries. In other words, the Judiciary Power came to be seen within the three powers as a factor of stability against legislative majorities that tended to tyranny of the majority.

This new configuration in the theory of separation of powers endowed the Judiciary with a role previously unheard of, which, by strengthening institutionally the body through constitutional rules, allowed Judges to start to interfere with more force and frequency in the political arena. As Lijphart (2003, p. 258) pointed out, if a body is created with the sole purpose of examining the constitutionality of the legislation, it is very likely that it will perform this task with some vitality. The Brazilian case is even more interesting, since its supreme court, the Supreme Federal Court - STF, is not a body with a single aim in analyze the constitutionality of norms and rules. He also acts as an ordinary appellate body in cases where he is the original body for actions against certain public authorities, in addition to assessing extraordinary appeals, where he exercises diffuse judicial review and also acts as a concentrated judicial reviewer. In other words, the Brazilian model is a hybrid model that united the North American model and the Kelsen model. However, this model was built over time, gradually and incrementally. The STF was not always so powerful, as demonstrated by Aliomar Baleeiro in the work “O Supremo Tribunal Federal, esse outro desconhecido” (The Supreme Federal Court, this other unknown), published in 1968 ( Baleeiro 1968). The Graph 1 illustrates this evolution over time. The y-axis represents the number of words contained in the section dedicated to the Judiciary in each Constitution by presidential mandates (x-axis) due to the changes made by constitutions and constitutional amendments. Thus, it was possible to capture the “size” of each of the three powers, allowing their comparison. The graph shows that the year 2004 (Lula 2003-2010) was the moment when the Judiciary (black line) overtook the Legislative (red line). The Executive is represented by the blue line. It was in that year that there was a reform of the judiciary (Amendment 45 of 2004), with the creation of the National Justice Council, making the control of the central Judiciary to become even stronger.

In addition to the reform of the Judiciary, Andrei Koerner stressed that President Lula, upon assuming the Presidency of the Republic in 2003, had difficulties in implementing his agenda through the Legislative route, opting for the judicial route when appointing progressive ministers linked to the left and social movements ( Koerner, 2013). This argument is well illustrated in Graph 2, with the alignment of the indicators ¹⁰ of judicial empowerment and party fragmentation. These indicators were constructed through the factor analysis of six variables in two blocks: 1) judicial empowerment, where the variables that measure the size of the Judiciary Power in the Constitution through the number of words (NPPJ), the degree of detail of the constitutional text related to the Judiciary (D) and the STF Empowerment Indicator (iSTF ¹¹ ); 2) party fragmentation, in which the variables of the effective number of parties (NEP), the Rae fractionalization index (F) and the minimum number of parties were implemented to implement a constitutional change (NMP). For more details, see Barbosa (2015, p. 63-98).

In the Graph 2, the y-axis is represented by the factored indicators, while the x-axis represents the year of constitutional changes (by Constitution and by amendments). The red dotted line signifies the point of no return, that is, after the 1988 Constitution there is no way for the Executive and/or Legislative to go back and diminish the powers of the Judiciary, unless it agrees with this reduction, which is very unlikely. Once the STF is in charge of controlling constitutional changes, any attempt to reduce its power through a Constitutional Amendment will be up to it to decide on its own reduction of power. This event specifically shows that, within the current constitutional order, it is the STF that decides on its own powers, being responsible for making a self-restraint ( Graph 1 shows that there is no reduction of power after 1988). The gray dotted line, on the other hand, illustrates Koerner’s 2013 argument, exactly when the indicators of party fragmentation and judicial empowerment are aligned over time. This alignment suggests an extremely strong correlation between party fragmentation and judicial empowerment.

The 1988 Constitution ignored Kelsen’s concern to create a judiciary as powerful as that of the United States. And it went further, incorporating a softer model, but which in the Brazilian institutional design became extremely strong, since in Kelsen’s conception, concentrated control should be exercised by an administrative body outside the three powers and not by the Judiciary, as it is in Brazil. Thus, the Brazilian model makes the Federal Supreme Court (from a prescriptive-normative point of view) an institutionally extremely powerful body. However, having the institutional power to act does not guarantee it will do so (contrary to Lijphart’s argument). As in national model the Judiciary is inert, it is necessary that other bodies first provoke it. And these demands have in fact been gaining strength as the STF responds to them with what jurists call judicial activism.

But what makes an elected political power to allow an unelected power to interfere with its actions in such a define way? Why does the Legislative and/or Executive endow the Judiciary with such strong institutional power (normative power)?

The institutional changes implemented by the constitutions and their respective amendments were not random or bequeathed to chance, they were the result of a strategic calculation that took into account the very trajectory of the Brazilian political system. The institutional aspect is pressing in this analysis, since it analyzes what the institutions do, how they maintain themselves and how the actors behave. There are, therefore, two perspectives under which one takes into account, first a strategic calculation and second, the cultural aspects. Hall & Taylor (2003) argue that the individual’s behavior is never entirely strategic, being limited by his worldview, that is, for culturalists individuals seek more satisfaction than optimization. The perspective of strategic calculation goes in the opposite direction, showing that institutions are maintained because they do something close to the Nash Equilibrium. Historical institutionalists, on the other hand, work with both perspectives when dealing with the relationship between institutions and action. According to Victória Hattam (1993), the difference between institutional contexts has a direct impact on power relations.

Due to the nature and distribution of variables, to test the hypothesis that the greater the party fragmentation, the greater the judicial empowerment, two inferential statistical techniques were adopted: the negative binomial, which is part of the generalized linear models and the minimal classic ordinary squares (OLS) of simple linear models. The choice of technique was due to the distribution of the dependent variable, which in this case violates the rules of the linear model, the main one being the normal distribution. The generalized linear models seek to face variables that do not have a normal distribution, more precisely, they seek to meet typical distributions of counts. Several studies give theoretical support to the generalized linear models, especially those of Nelder & Wedderburn 1972, Feigl & Zelen 1965, Berkson 1944, and Dyke & Petterson 1952.

The dependent variables are in the first line, followed by the techniques used. The independent variables are in the first column on the left. Three models (in parentheses) were made for each technique. The first model is the unrestricted one, with all independent variables to verify multicollinearity and to seek a more adjusted, more parsimonious model, which we call model 2, where only the variables that resisted the multicollinearity test (VIF - Variance Inflation Factor) were maintained. The third model, on the other hand, necessarily has the indicator of political party fragmentation as the only independent variable, through factor analysis of the other independent variables. The models are shown in the tables below, and after that we have the analyzes ( Tables 8 and 9).

The data corroborate the hypotheses that the greater the political and party fragmentation, the greater the tendency for the Judiciary to be empowered. For the test of the iSTF indicator, the variables NMP and Political Competition showed a positive impact on the indicator. As the values are exponentialized, the interpretation is that the increase of one unit in the minimum number of parties increases the chance of the Judiciary being strengthened by 11,43%. The increase of one unit in political competition, on the other hand, increases the chance of 3.93%. The fragmentation indicator is more complex, as it varies in standard deviations. Therefore, the increase of a standard deviation in the indicator produces a 45,46% chance increase in the iSTF indicator. The most intuitive is to stick with model two. In any case, both model 2 and model 3 show that the greater the political and party fragmentation, the stronger the judiciary becomes.

For Linzer & Staton’s 2015 LJI (Latent Judicial Independence) variable test, only one variable was statistically significant in the parsimonious model. As the linear model is simple, an increase of one unit in political competition produces an increase of 0.05 in the LJI unit, which ranges from 0.079 to 0.637. Model three points out that the increase in a standard deviation in the fragmentation indicator produces an increase of 0.1494 in the LJI. In both cases it is quite intuitive to say that, again, but with other forms of measurement for the judiciary, the increase in fragmentation increases the indicators that measure the power of the judiciary.

For the test of the XCONST variable, again only the political competition variable was statistically significant, where the increase of one unit causes an increase of 23,03% in the dependent variable that measures the level of embarrassment of the judiciary over the Executive. The fragmentation indicator points to an increase of 53,21%.

For the test of the factorized variable V-Dem Judicial Index, two variables were statistically important: NMP and polyarchy. It means that the increase of one unit in these variables increases by 0,1480 and 2,1717 standard deviations in the dependent variable, respectively. The fragmentation indicator, on the other hand, produces an increase of 0,9247 standard deviation. Then the test for the variable XCONST categorized in 3 levels.

For the ordinal variable, the multinomial technique (mlogit in STATA) was used and we chose the weak category to be the base result. In comparison to a weak constraint, there is more likely to be a medium constraint if there is an increase in party political fragmentation. There is even more likely to be a strong constraint compared to the weak category. The marginal effects also showed this. In the probit model, it reads practically the same way, there is a greater probability of medium constraint and even greater in strong constraint, compared with weak constraint, when a unit is increased in the dependent variable, which, because it is factored, this unit corresponds to a standard deviation, which is a very high value, but it is interesting to measure the impact (whether positive or negative, and its intensity) ( Table 10).

Table 10 shows the marginal effects after the multinomial logit model, where it can be seen that the increase of one unit (standard deviation) in the fragmentation indicator, there is a 36,84% probability of having a strong constraint from the Judiciary over the Executive. In the probit model, the marginal effects are practically the same. There is a greater likelihood of a strong constraint compared to a weak one, when increasing a unit in the independent variable.

If, in the resumption of democratic discussion in post-absolutism models Parliament was the central institution, there is no doubt that in the post-war period the Judiciary came to play a prominent role, especially in times of political crisis, where political alignment (or necessary coalitions) had become a key point for the proper functioning of democracies. There is no denying that today the Supreme Courts have become a key player in the decision-making process, given the inability of the elected powers to resolve political impasses. What was in Montesquieu’s words “almost nothing”, or according to Aliomar Baleeiro (1968) “an unknown”, became the Queen of a chess game.

In Brazil, this process, although consolidated by the 1988 Constitution, continued to evolve, giving the Supreme Federal Court the chance to exercise a decision-making capacity not provided for in the constitutional text. The models were forceful in demonstrating that party fragmentation has a positive and statistically significant impact on the increase in power of the Supreme Federal Court and this impact is stronger in the democratic period when compared to the dictatorial period. It was also proven that the increase in the power of the STF was mainly due to constitutional amendments, of which the Executive was the author of most. As previously mentioned, other variables may have a relative weight in explaining specific decisions, such as the Courts’ own endogenous decision-making dynamics, an exclusive source of self-empowerment.

The current moment of political crisis and the increasingly attentive eyes to the decisions of the ministers of our supreme court corroborate the growing trajectory of institutional empowerment, which authorizes the court to decide peremptorily, and not only within the process of drafting public policies, but also about the government’s own definition and the freedom of its members involved in scandals. The impasses that the country is experiencing recently increase the demand for decisions of the Supreme Federal Court. Therefore, the solution that has been sought to circumvent (by-pass) the problems of party fragmentation and political uncertainties is through the judicial system, as a kind of insurance policy. And all of this happened with the support, consent and silence of the incumbents.