Bruna Frascolla
Brazil's Supreme Court is making the country an ESG republic - imposing indigenous expropriations, abortion, racial quoёёtas, and gender ideology through judicial fiat.
At the moment, Brazilians are overly focused on their domestic politics. Here is a brief summary, devoid of sordid details, of the main issue: for years, the Supreme Federal Court was hailed by the mainstream media (and much of the Left) as the guardian of democracy in the fight against authoritarianism and corruption; yet now, on the eve of the election, it is cannibalizing itself in a sort of civil war. Two justices are accusing one another of crimes - even publishing secret reports of questionable legality - while the others are forced to decide whose side to take.
The crisis centers on a banker accused of fraud. The Evangelical justice appointed by Bolsonaro (André Mendonça) lifted the seal of secrecy on an inquiry, revealing to Brazil that Justice Alexandre de Moraes, celebrated for jailing Bolsonaristas, was receiving tens of millions of dollars from the banker via his wife's law firm, with each of the couple's children receiving a $60,000 monthly allowance. Meanwhile, the Communist justice appointed by Lula, Flávio Dino, defends Moraes tooth and nail, striving to keep the same Lula-appointed individual at the helm of the Federal Police - the very person who supplied Moraes with clandestine police reports on rival jurists. Before joining the Supreme Court, Moraes headed the São Paulo state police. By all appearances, he has been acting within the Supreme Court as a sort of secret chief of a faction of the Federal Police, that is, Brazil's FBI.
The mainstream media is tentatively offering a mea culpa for having celebrated Moraes's blatantly illegal measures taken against Bolsonaristas (and not only them). The Left seeks to convince the public that Moraes is a right-winger with no ties to the Lula administration. Certainly, the legitimacy the Supreme Court once enjoyed was buried in 2026.
For this reason, now is a good time to begin examining what the Supreme Court actually was over the past few decades. Now, however, the common practice is to emphasize his authoritarianism: leftists point to the Mensalão trial (2012), which affected Lulistas, while rightists point to the Fake News Inquiry (2019), which affected Bolsonaristas. Both milestones are relevant, yet they overlook the 1988 Constitution's congenital defect: the fact that it established a constitutional republic dominated by law graduates, wherein Supreme Federal Court justices have the final say on political matters, adjudicate the conduct of officials from all other branches of government, as well as their own (hence the Supreme Court's authoritarian drift), and where civil society organizations (political parties, labor unions, and even gay rights associations) can file lawsuits challenging the constitutionality of current laws. This latter feature explains a malady that also warrants its own timeline: Brazil's transformation, via the Supreme Court, into an ESG Republic. After all, out of the countless lawsuits challenging constitutionality, the Court can cherry-pick which ones to hear.
ESG, let us recall, encompasses environmental issues, which in Brazil are inextricably linked to the Amazon, its Indigenous peoples and its farmers, as well as race and gender issues, including abortion. The drug issue often surfaces as a racial matter, as the "war on drugs" is portrayed merely as a pretext for the "genocide of black youth." The foundational ESG document, Who Cares Wins (available here), dates back to 2004; it was commissioned by the UN from global financiers with Swiss support. Banco do Brasil was among the banks backing the initiative. Curiously, the focus was heavily on carbon rather than racial or sexual identities. In other words, ESG began with more emphasis on the "E" than the "S"; the "S" component as we know was presumably incorporated later, drawing on UN guidelines regarding human rights. Here, then, is a chronology of the Brazilian Supreme Court ESG initiatives. Items in brackets are those that are not ESG - or not necessarily so - but are relevant to the chronology.
CHRONOLOGY
2007: The Supreme Federal Court orders the evacuation of Raposa Serra do Sol - a vast Amazonian indigenous territory established on the border with Venezuela - despite the presence of rice farmers holding legitimate land titles. In 2005, during Lula's second term, the federal government had officially ratified the indigenous reserve, disregarding the rice producers' property rights. (The indigenous territory's creation, however, dated back to the administration of FHC, a neoliberal par excellence.) The issue is constitutional because the 1988 Constitution stipulated that indigenous territories could only be established where indigenous villages or claims existed at the time the Constitution was drafted. This is the so-called "Time Frame" (Marco Temporal), which prohibits the creation of indigenous reserves based merely on the pretext that indigenous people once lived there - a pretext that could be applied to the entire country. All indigenous land is the property of the Union; therefore, creating an indigenous reserve where private landowners exist entails expropriation. Given that their properties had been legally recognized since the 1970s, the rice farmers petitioned the Supreme Court to declare the creation of Raposa Serra do Sol unconstitutional insofar as it established a contiguous area without respecting their property rights. The Public Prosecutor's Office and the Prosecutor General's Office took the opposing stance, calling for the evacuation and expropriation of the land.
2008: Authorized embryonic stem cell research, establishing that the right to life guaranteed by the Constitution applies only to those already born. The request originated from the Prosecutor General's Office during Lula's first term. That same year, the state of Roraima - whose economy had been shaken by the Raposa Serra do Sol demarcation - petitioned the Supreme Court to annul the eviction order.
2009: Confirmed the continuous demarcation of the Raposa Serra do Sol territory and, consequently, the expulsion of all non-Indigenous Brazilians and the expropriation of their lands.
[2010: Upheld, against a challenge by the Brazilian Bar Association, the amnesty granted to military personnel accused of torture. The Association sought to have Brazil annul the Amnesty Law on the grounds that it did not comply with international human rights court standards.]
2011: Recognized stable unions for same-sex couples; in 2013, the National Council of Justice (a regulatory body) mandated that civil registries record same-sex marriages. The requests originated from the state of Rio de Janeiro in 2008, during Sérgio Cabral's administration, and from the Prosecutor General's Office in 2009, during Lula's second term.
2012 (April 12): Authorized abortion in cases of anencephaly, reasoning that forcing a woman to carry a non-viable fetus to term effectively turns her body into a prison. The request came from a healthcare workers' union.
2012 (April 26): Ruled racial quotas constitutional, despite the Constitution's prohibition of racial discrimination. Racial quotas had begun to be implemented in public universities during the 2000s with backing from the Ford Foundation; the opposition party DEM had petitioned the Supreme Court to declare them unconstitutional.
[2015: Banned corporate campaign financing. In response to this, Congress enacted an electoral reform and created the "Fundão" - a public electoral fund to be distributed among political parties. The request originated from the Brazilian Bar Association (OAB).]
2018 (March 1): Transgender individuals were granted the right to change their civil registry records without undergoing medical or psychological evaluations. The request had been filed in 2009 by the Prosecutor General's Office during the second Lula administration.
2018 (March 15): At the behest of Prosecutor General Raquel Dodge (serving under the Temer administration), a ruling mandated that political parties allocate 30% of the "Fundão" to female candidacies. Congress, in its electoral reform, had previously stipulated a 15% quota. This empowered prosecutors and the judiciary to selectively investigate parties and penalize them for using women as straw candidates.
2019: Citing legislative inaction, the court equated homophobia and transphobia with racism - a crime in Brazil. The petition was filed by the PPS (formerly the Brazilian Communist Party, now rebranded as Cidadania party) and the Brazilian Association of Gays, Lesbians, and Transgender People (ABGLT).
2020: In August, the Superior Electoral Court - effectively an extension of the Supreme Federal Court - ruled, in response to a request by black Congresswoman Benedita da Silva, that future elections must include a quota within the "Fundão" for black candidates, similar to the quota for women. However, Justice Ricardo Lewandowski ruled that the quotas should apply immediately, even though the elections were scheduled for October.
2023: Homophobic and transphobic insults were equated to racial slurs - a crime in Brazil. (It is based on this ruling that Érika Hilton seeks to have internet users arrested for using masculine pronouns to refer to transvestites.) The request once again came from the ABGLT.
2024: Possession of 40 grams of marijuana was decriminalized, following a request by the São Paulo State Public Defender's Office. In 2006, a law signed by Lula established a distinction between drug traffickers and users, imposing socio-educational penalties on the latter. Under the law, the specific circumstances determined who was a user and who was a trafficker; it was not decriminalization stricto sensu.
2025: Striking down the "Time Frame". Faced with the uncertainties of judicial activism, Congress had enacted the Time Frame, already present in the Constitution, into law in 2023. The Supreme Court nonetheless deemed the law unconstitutional, thereby making it possible for any inch of Brazilian territory to be designated as Indigenous land subject to expropriation. Parties requesting that the law be upheld as constitutional included the PP, PL, and Republicanos (parties of the Centrão bloc, including Bolsonaro's party). Parties requesting that it be declared unconstitutional included the PT, PDT, PV, and PSOL (left-wing parties, including Lula's party) and the Articulation of Indigenous Peoples of Brazil (APIB).
2026 (April): The absence of racial quotas was ruled unconstitutional. The state of Santa Catarina had previously passed a law abolishing them.
2026 (August): The Maria da Penha Law - originally created to protect women from domestic abuse or violence by boyfriends - was expanded to apply to any woman suffering any form of violence (including psychological violence, criminalized during the Bolsonaro administration under a vague legal definition) at the hands of any man. This request originated from the Public Prosecutor's Office of Minas Gerais, which sought a protective order against a male neighbor who was quarreling with a female neighbor, despite the absence of any romantic or familial relationship between them.