By André Vieira
Brazil Stock Guide — There is something irresistible about superlatives whenever an institution falls into crisis. The crisis is always the worst, the conflict always unprecedented, the rupture always without parallel. In the case of Brazil’s Supreme Court, the Supremo Tribunal Federal, or STF, that language acquired unusual weight in September 2026: thirteen former justices sent a letter to Chief Justice Edson Fachin describing the current moment as the “most acute crisis” in the Court’s history and calling for a public and rigorous investigation into events that, in their view, have damaged its standing, authority and public trust.
History, however, argues for some caution. Brazil’s Supreme Court has had its composition altered by authoritarian governments, seen justices forcibly retired and operated under dictatorships that restricted its jurisdiction. One of its chief justices was once prepared to hand the keys of the Court to the presidential palace if the military regime removed his colleagues. Another justice took off his robe and left the institution for good because he could not accept the position adopted by the majority. Nor are internal wars among justices an invention of the contemporary Court.
One useful way to view that trajectory comes from historian Emília Viotti da Costa. In O Supremo Tribunal Federal e a construção da cidadania — The Supreme Court and the Construction of Citizenship — she follows the Court from its creation through 1988, placing its rulings, advances and retreats within Brazil’s broader struggle to build democratic institutions.
The Court that emerges from that history does not move steadily toward ever greater independence. It gains and loses ground. At times it confronts political power; at others it accommodates it. And from very early on, its own members disagreed profoundly over what role the institution should play.
A Court for the Republic
The Supreme Court was born almost alongside the Brazilian Republic. Brazil had had a Supreme Court of Justice since 1829, under the monarchy, but that body did not possess the constitutional powers that would later be assigned to the STF. When the monarchy fell in 1889, the new regime also had to build a new judicial architecture.
The name Supremo Tribunal Federal appeared in 1890. Decree No. 848 organized the federal judiciary, and the Republican Constitution of February 24, 1891 confirmed the new model. The Court held its first session four days later, on February 28. It began with fifteen members, nominated by the president and subject to Senate approval.
It was a profound institutional change. Under the Empire, the ultimate arbiter of major conflicts among the branches of government was, at least in theory, the emperor himself, through the so-called Moderating Power. The Republic abolished that institution. Part of Brazil’s legal elite began to envision a Supreme Court, inspired in large measure by the U.S. model, as occupying some of that space — not by governing, but by protecting the Constitution and placing limits on the other branches.
The first war among justices
More than a century before Alexandre de Moraes, André Mendonça, Gilmar Mendes, Joaquim Barbosa, Luís Roberto Barroso or Marco Aurélio became protagonists of highly public disputes, two of the leading jurists of Brazil’s First Republic were already engaged inside the Court in what would later be described as a “battle of lions.”
Epitácio Pessoa joined the Court in 1902, long before becoming president of Brazil, a position he would hold from 1919 to 1922. A native of Paraíba, he had already served as justice minister under President Campos Sales and had an unusually political career even by the standards of the First Republic.
Pedro Lessa arrived five years later. Born in Serro, Minas Gerais, he was a professor at the São Paulo Law School and was appointed to the Supreme Court in 1907. Both men enjoyed formidable intellectual reputations, but they held very different views of the role of a Court that was still trying to define its place in the young Republic.
Lessa was close to the judicialist tradition associated with Rui Barbosa. In that view, the Supreme Court should act as an effective constitutional arbiter, capable of protecting rights and restraining the other branches, including state oligarchies and the president himself. Pessoa was wary of that expansion. He believed essentially political disputes should, as far as possible, be resolved through political mechanisms. The judiciary, in his view, should exercise greater restraint.
This was not a minor academic disagreement. In a 2025 paper, Epitácio Pessoa no Supremo: um contraponto ao judiciarismo de Rui Barbosa e Pedro Lessa (1911-1912), UFRJ researcher Wingler Alves Pereira reconstructed the confrontation and showed how an intellectual dispute became a personal feud.
The relationship between Pessoa and Lessa spilled beyond the walls of the Court and into the pages of the Jornal do Commercio. At one point, an intervention by friends was reportedly needed to prevent the publication of a particularly offensive article by Pessoa attacking Lessa.
More important than the tone, however, was what lay behind it. The most revealing episode arose from a dispute over the governorship of the state of Rio de Janeiro in 1911. The Supreme Court granted a habeas corpus petition in a political battle between rival groups claiming control of the state government. When difficulties emerged in enforcing the ruling, Pessoa argued that the Court itself should recognize that its decision could no longer be carried out because the Executive had already resolved the political dispute. His position prevailed by six votes to five.
Amaro Cavalcanti — a jurist from Rio Grande do Norte, a former justice minister and a member of the Court — formally protested. He considered the solution procedurally unlawful and unjustifiable on the merits. Pedro Lessa expressly joined his objection. The Court was divided over more than the outcome of a single case. It was grappling with an existential question for an institution barely twenty years old: how far should the Supreme Court go when politics and the Constitution collided?
The contrast with 2026 is almost cinematic. There was no television, no social media, no livestreaming. There were not eleven individual chambers capable of moving the machinery of the federal government almost instantly through a single-justice ruling. But there were personalities, doctrines, ambitions and resentments. That is why the Pessoa-Lessa conflict still matters. They were not merely fighting over a case; they were fighting over the shape and reach of the Supreme Court itself.
When the enemy was outside
Not every major crisis in the Court’s history came from within. The most dangerous ones were often the opposite.
After the 1930 Revolution, Getúlio Vargas did not need to quarrel with a justice to change the balance of the Court. He changed the Court itself. On February 3, 1931, the provisional government reduced the number of justices from fifteen to eleven. Two weeks later, Vargas went further. By decree, he forcibly retired six members: Godofredo Cunha, Edmundo Muniz Barreto, Pires e Albuquerque, Pedro Mibieli, Pedro dos Santos and Geminiano da Franca.
This was a very different kind of crisis. There were no two justices arguing over the limits of judicial power. The head of the Executive was redesigning the institution that, in theory, was supposed to be capable of limiting his own authority.
But the Vargas era would produce an even more uncomfortable chapter in the Court’s history. The Supreme Court did not always need to be defeated in order to retreat. Some of its most difficult decisions to defend historically came when the Court, facing an increasingly authoritarian Executive, chose not to intervene.
In June 1936, lawyers for Olga Benário — a German Jew, communist, partner of Luís Carlos Prestes and pregnant at the time — asked the Supreme Court to prevent her expulsion from Brazil. Benário had been arrested after the failed communist uprising of 1935. The habeas corpus petition argued that she should not be expelled and that any crimes committed in Brazil should be tried in Brazil. On June 17, 1936, the Supreme Court declined to hear the petition.
Technically, the Court did not rule that Benário should be handed over to Nazi Germany. But by refusing the habeas corpus petition, it did not block the Vargas government from carrying out its decision. Months later, she was sent to Germany. She died in 1942 at the Bernburg killing center.
One historical detail is particularly important: this happened in 1936. Vargas did not establish the Estado Novo dictatorship until the following year. The Benário ruling therefore cannot simply be explained as the behavior of a Court already subordinated to the dictatorship created in 1937. It came while the constitutional institutions established in 1934 still formally existed, albeit under rapidly growing authoritarian pressure.
That makes it a different category of crisis. Sometimes a Supreme Court is placed in crisis because another branch defies its rulings. Sometimes because the political system tries to control it. And sometimes because the Court itself chooses not to use all the power available to it.
From November 1937 onward, much of the ambiguity disappeared. The Estado Novo deepened the judiciary’s institutional subordination. The new constitutional order concentrated extraordinary powers in the Executive. Vargas even removed from the justices the right to freely choose the Court’s chief justice and deputy chief justice, assuming the power to appoint them from among the Court’s own members. Over the course of his periods in power, Vargas would appoint 21 Supreme Court justices.
By that measure — the ability of a president to directly reshape the composition, independence and functioning of the Supreme Court — it is difficult to imagine a more profound institutional crisis.
But 1964 was still to come.
The keys to the Supreme Court
Tension between the military regime and the Supreme Court began almost immediately after the 1964 coup. Álvaro Ribeiro da Costa, then chief justice, became a central figure in the Court’s resistance. According to an account later incorporated into the STF’s own institutional history, Ribeiro da Costa warned President Humberto Castelo Branco that if any member of the Court were removed because of his decisions, he would close the Supreme Court and send its keys to the Palácio do Planalto.
The regime found another route. In October 1965, Institutional Act No. 2, or AI-2, expanded the Court from eleven to sixteen members. Castelo Branco gained five new seats to fill. It was a direct intervention in the composition of the institution: rather than immediately removing sitting justices, the government enlarged the Court and changed its internal balance through new appointments.
Four years later, maneuver gave way to force. Historian Carlos Fico, a professor at UFRJ and one of Brazil’s leading scholars of the military dictatorship, describes AI-5 as a decisive radicalization of the regime, enabling sweeping emergency measures such as the closure of Congress, the removal of elected officials and the summary suspension of political rights. For the Supreme Court, the escalation carried a particularly serious implication: the guarantees protecting judges could also be suspended.
On January 16, 1969, Hermes Lima, Victor Nunes Leal and Evandro Lins e Silva were forcibly removed from the Supreme Court. After learning of the purges, two other members chose to leave: Chief Justice Antônio Gonçalves de Oliveira and the Court’s longest-serving justice, Antônio Carlos Lafayette de Andrada. Soon afterward, AI-6 reduced the Court once again, from sixteen members back to eleven.
The sequence is revealing. The regime enlarged the Court when it needed to alter its composition, removed justices it considered inconvenient and, once that had been done, cut the number of seats again.
This was not a crisis of image. It was a crisis of power. The state was removing judges because it no longer wished to coexist with them. By almost any measure of judicial independence, 1969 remains one of the strongest candidates for the darkest moment in the republican history of the Supreme Court. In that crisis, however, the sides were relatively easy to identify. On one side stood the Court. On the other stood the regime. Two years later, that boundary would become harder to draw.
The justice who took off his robe
In 1971, Justice Adaucto Lúcio Cardoso broke sharply with the position adopted by the Supreme Court in a controversy involving the censorship machinery of the Médici government. Cardoso was hardly a lifelong opponent of the military regime. Quite the contrary. A former lawmaker from the conservative UDN party, he had been appointed to the Court in 1967 under military rule.
Yet in a case that became associated with what critics called the “gag law,” he found the Court’s position intolerable. According to the STF’s own historical record, Cardoso, outraged by the decision, stood up, removed his robe, declared that he would never return to the Court and requested retirement. He had been on the losing side of a dispute involving the prosecutor general’s power to prevent a constitutional challenge from reaching the Supreme Court.
The scene is powerful precisely because it complicates any overly simple account of courts under authoritarian regimes. The pressure came from outside, but the rupture occurred inside. Cardoso concluded that he could no longer remain part of a Court whose institutional response he considered incompatible with the role he believed the Supreme Court should play. The robe he removed in the courtroom was a protest against the regime. But it was also a protest against his own colleagues.
The Supreme Court was never a family
Even as the dictatorship began to lose strength, internal divisions did not disappear. During the transition to democracy, the Supreme Court remained divided over legal and institutional questions — and over the role it should play in the emerging political order. There was also persistent criticism that the Court remained too distant from some of the major political and social transformations taking place in Brazil.
Perhaps that is why it is less useful to search for an inaugural moment in the Supreme Court’s crises than to recognize the persistence of its dilemmas. Regimes changed. Constitutions changed. The Court’s relationship with political power changed. The tension between authority, restraint and internal disagreement remained.
The history of Brazil’s Supreme Court has never been the history of a tribunal permanently at peace with itself. From the beginning, it has been the story of an institution trying to decide how much power it should possess, when it should exercise that power, and how justices with radically different interpretations of that authority could continue to form a single Court. In 1988, Brazil would give this old institution a new Constitution. The questions, however, were much older.
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