Supreme Court Goes Dishonest | Opinion

The recent U.S. Supreme Court decision granting the president virtually unlimited powers and immunity is a disturbing milestone in a broader global trend. Supreme courts across the globe are increasingly overstepping their traditional roles, taking political positions and imposing the visions of a select group of “enlightened” individuals. While the judiciary is tasked with checking the excesses of other branches of government, recent examples from the U.S., Spain, and Brazil illustrate dangerous excesses that threaten the balance of power and democratic governance.

The U.S. Supreme Court’s decision to protect the president with virtually unlimited powers and immunity is a flagrant abuse of judicial power. This ruling not only undermines the principle of checks and balances, but also sets a dangerous precedent for the executive branch. By granting the president such broad powers, the Court effectively undermines the fundamental democratic principle that no one is above the law.

The decision is the culmination of a series of controversial rulings that increasingly align the Court with particular political ideologies. The judiciary, which should act as an impartial arbiter, is becoming a battleground for political agendas. The implications are profound — the credibility of the judiciary is at risk, and public confidence in the Court’s ability to act as a neutral guardian of the Constitution is undermined.

In Spain, the Supreme Court’s refusal to accept a law passed by parliament granting amnesty to Catalan politicians seeking independence is another example of judicial abuse. Unlike the case in the United States, where the Court extended executive power, the Spanish Supreme Court directly challenges legislative sovereignty.

This excess of power does not seek to declare the law illegal, which would be within the prerogative of the Court, but aims to undermine the sovereign legislative decision by introducing elements of Spanish nationalism and attempting to prevent further attempts at independence for Catalonia by persecuting the leaders of the movement, such as the former President of Catalonia, Carles Puigdemont, who still lives in exile in Belgium.

This action undermines the democratic process in which elected officials are supposed to represent the will of the people. When the judiciary oversteps its role and begins to interfere in legislative decisions, it poses a serious threat to the democratic fabric of the nation — and Spain is not known for respecting the will of its people, especially when it comes to Catalans or Basques.

In Brazil, the Supreme Court played a key role in preventing a coup like the one Trump attempted on January 6, 2021. But the court’s growing involvement in political matters, including making laws and assuming police powers, raises serious concerns. While the court’s intervention was crucial to protecting democracy at a critical juncture, its continued entry into the political arena is problematic.

Ministers like Alexandre de Moraes played a key role in preventing the pro-Bolsonaro coup on January 8, 2023, when thousands of fanatical supporters of the former president stormed the Supreme Court, Congress and presidential palace, wreaking havoc, destroying facilities and aiming to undermine the fabric of Brazilian democracy with the support of sections of the army and police.

But the continuation of what could be considered exceptional measures also threatens Brazilian democracy, as ministers give themselves special powers to patrol social media, censor content and take over the powers of investigators, judges and jurors.

The judiciary must protect democratic institutions without becoming a political actor. By taking on roles traditionally reserved for the executive and legislative branches, the Court risks undermining its own legitimacy and exposes itself to criticism from extremists because it ultimately exceeds its prerogatives.

The credibility of the judiciary is essential to its authority. When courts become politicized, public confidence in their decisions wanes, leading to a crisis of confidence in democratic institutions. Separation of powers is a cornerstone of democratic government, and abuse of judicial power disrupts this balance, resulting in power struggles between branches of government and weakening checks and balances.

Democracy is at risk when judicial actions undermine democratic processes. While courts must defend constitutional and human rights, even against majority opinion—such as Brazil’s Supreme Court guaranteeing abortion rights despite public opposition—democracy includes protecting minority rights through dialogue. Problems arise when ideology influences courts to arbitrarily overturn decisions by other bodies, disenfranchising voters and distorting governance.

Democracies face the challenge of balancing judicial independence with accountability. Supreme courts should act as checks on branches of government without overstepping their authority. There are growing calls, including from constitutional law professor Conrado Hübner Mendes of the University of São Paulo, to develop a code of ethics for the Brazilian Supreme Court to clarify conduct and improve public perception. In addition, judicial accountability mechanisms, such as transparent appointment processes and performance reviews, are essential without compromising independence.

Public understanding of the role and limitations of the supreme courts is also crucial. Ultimately, democracy is threatened not only by the rise of far-right and authoritarian leaders, but also by a lack of accountability and ethical standards within state power, which perpetuates radical discourses in a harmful cycle.

Raphael Tsavkko Garcia is a Brazilian journalist and editor based in Belgium. He holds a PhD in Human Rights from the University of Deusto (Spain).

The views expressed in this article are those of the author.