Is Brazil’s Supreme Court Saving Democracy or Threatening It?

Daniel Silveira, a policeman turned far-right Brazilian congressman, was furious. He believed Brazil’s Supreme Court was persecuting conservatives and silencing them on social media, and he wanted to do something about it.

So he sat on his couch and began recording. “How many times have I imagined you getting beat up on the street,” he said in a 19-minute diatribe against the court’s justices, muscles bulging through his tight T-shirt. He posted the video on YouTube in February 2021, adding, “I’ll say what I want on here.”

A Brazilian Supreme Court justice immediately ordered his arrest. A year later, 10 of the court’s 11 justices convicted and sentenced him to nearly nine years in prison for threatening them.

Jair Bolsonaro, Brazil’s president at the time, pardoned Mr. Silveira, but the Supreme Court overruled him. Today, Mr. Silveira remains in prison. There is no room for appeal past the Supreme Court.

Mr. Silveira’s case is part of a creeping institutional crisis for Brazil.

For the past five years, the nation’s Supreme Court has expanded its power to carry out a sweeping campaign to protect Brazilian institutions from attacks, many of them online.

To the Brazilian left, the offensive has helped rescue Brazil’s democracy. To the right, it has made the court a threat to democracy itself.

Both might be right.

Shortly after Mr. Bolsonaro became president in 2019, the Supreme Court began its campaign with a highly unusual move: It granted itself the authority to open a criminal investigation into attacks against the court. It called it the Fake News Inquiry.

That led to a series of investigations led by a single justice, Alexandre de Moraes.

The investigations targeted far-right operators who called for a military coup after Mr. Bolsonaro lost the presidency in 2022, helping to safeguard the transfer of power.

Justice Moraes has also taken new powers to order raids on people who simply criticized the court online, force news organizations to take down articles and order tax agents to stop investigating another justice and his wife.

The court also appointed him as a sort of sheriff of the Brazilian internet. He has made tech companies silence hundreds of people on social media and blocked Elon Musk’s X when it didn’t comply.

Most of the other 10 justices have formally backed his decisions.

Now, two years after the tumult of the last election and five years since the court granted itself the new powers, it has proved reluctant to give them up.

“If it weren’t for this investigation, democracy in Brazil would have collapsed,” said Justice Dias Toffoli, 56, who created the Fake News Inquiry and tapped Justice Moraes to run it.

The court’s chief justice, Luís Roberto Barroso, 66, said imposing other nations’ standards on Brazil was unfair. While the U.S. Constitution protects even hate speech under the First Amendment, for example, Brazil does not. “Countries have different circumstances,” he said, “and a young democracy like Brazil needs to protect itself from real risks.”

He added, “there’s an end in sight” to the investigations.

With its new powers, Brazil’s Supreme Court has become one of the world’s most powerful top courts, said Tom Ginsburg, a professor of comparative constitutional law at the University of Chicago, who tracks courts around the globe.

“Even if some of the decisions might be good and some might make sense, many view it as a real overreach that’s having a chilling effect on speech in Brazil,” he said. “In a democracy, you need to be able to criticize all government institutions.”

The court’s aggression is now attracting global attention, with the help of Elon Musk.

Justice Moraes, 55, has ordered social networks to block at least 340 accounts in Brazil since 2020, removing hundreds of thousands of their posts, according to a New York Times analysis of the small portion of his decisions that have been released publicly.

In some cases, he said he blocked the accounts because they spread hate speech or threatened institutions, providing examples. But for more than half of the accounts, he said, the reason they must be removed is under seal. Justice Barroso said tech companies could request explanations.

Those moves have enraged Brazil’s right and, recently, Mr. Musk. The billionaire refused to comply with the orders. Justice Moraes then blocked X.

The power struggle ended with a clear victor: Mr. Musk backed down and complied. Justice Moraes lifted the block on X last week.

In interviews, four senior officials in Brazil’s Attorney General’s Office described the court’s actions as a broad power grab, said that the court lacked accountability and complained that its investigations had dragged on for years without resolution.

“There’s no doubt we saved the democracy, and the Supreme Court had a real role in that,” said Ubiratan Cazetta, a Brazilian federal prosecutor who leads the nation’s official association of prosecutors. “But the cost of that is what worries me.”

The case of Mr. Silveira demonstrated a central criticism of the court’s recent actions: At times, it has been the victim, an investigator and the judge, all at once. The justices disputed that, saying the victim is Brazil’s democracy, not the justices.

(Mr. Silveira’s lawyer said his client’s conviction violated various laws and his legal immunity as a congressman.)

Some legal experts said the court responded appropriately to Mr. Bolsonaro’s movement because Brazil’s attorney general’s office did not. But they worried that the court’s actions had continued after threats had subsided.

“Exceptional times require exceptional measures,” said Thiago Amparo, a prominent Brazilian human rights lawyer who has supported the court. “But when you don’t have any more exceptional times, you don’t require exceptional measures.”

Brazilians are split. In a Pew Research poll this year, 47 percent of Brazilians said the courts were a bad influence on the country, while 45 percent said they were a good influence.

Unlike the U.S. Supreme Court, which decides 100 to 150 questions of constitutionality a year, Brazil’s top court is almost its own judicial system. It is a constitutional court, an appeals court and, because of the new investigations, increasingly, a criminal court.

Its modernist headquarters is packed with assistant judges, lawyers and aides processing roughly 100,000 cases a year. Above them, televisions show their bosses in hearings on live television, which has helped make the justices national celebrities, largely seen as untouchable. Appointed by the president, they serve until 75 years old.

In early 2019, news reports suggested that a sprawling corruption investigation, Operation Car Wash, was starting to probe some justices, including the court’s chief at the time, Justice Toffoli.

He blasted reports claiming that the court was trying to stifle the investigation. “Attacking any one of us is an attack on us all,” he told fellow justices in a 2019 hearing. “Slander, defamation and insults will not be allowed.”

The next day, Justice Toffoli unveiled the Fake News Inquiry. (He used the English term, already popularized by Donald J. Trump.) In his one-page ruling, he said the court would investigate “fake news, false reports of crimes, slanderous reports, threats and other infractions” that “affect the honor and security of the Federal Supreme Court, its members and family.”

As legal justification, Justice Toffoli used a line in the court’s rules saying it could investigate crimes committed against justices “on the Supreme Court headquarters or premises.” He decided that was outdated.

“Today the world is digital,” he said in a recent interview. “Any attack anywhere on the institution is an attack on the Federal Supreme Court.”

Suddenly, the Supreme Court could investigate just about any criticism of it anywhere.

In one of his first actions at the helm of the inquiry, Justice Moraes ordered a magazine, Crusoé, to pull down an online article that linked Justice Toffoli to a corruption scheme. Justice Moraes called it “fake news.”

When the magazine later produced evidence showing the report was accurate, he allowed it to republish the article.

Around the same time, Justice Moraes ordered raids against seven people who criticized the court in online posts. Some called the court corrupt and demanded justices be ousted. The police burst into their homes, confiscating phones and laptops.

Years later, no charges have been filed, but their property has not been returned, according to one subject of the raids.

In the years since, the scope of the Fake News Inquiry broadened to focus on any attacks against institutions. Justice Moraes then used his position overseeing it to take control of at least eight similar inquiries, most focusing on the actions of Mr. Bolsonaro and his supporters. That made the court the No. 1 target of Mr. Bolsonaro’s movement. Angry Bolsonaro supporters threatened the justices online, shouted at them in public and tracked their movements in private.

At one point, in an apparent bid at intimidation, Mr. Bolsonaro ordered fighter jets to fly so low over the Supreme Court’s headquarters that it would break the building’s windows. The military refused.

The court only stiffened its approach. In the run-up to the 2022 election, Justice Moraes, who was also acting as the nation’s elections chief, ordered tech companies to take down accounts or posts that he said threatened the integrity of the vote, including some from Mr. Bolsonaro.

After Mr. Bolsonaro lost, his supporters blocked highways and camped out at Army bases, claiming fraud and demanding that the military overturn the results. The moment worried many in a nation that suffered under a military dictatorship from 1964 to 1985. Justice Moraes ordered the removal of more accounts, which disputed the vote or supported the protests.

It also appears that he went after a news organization that covered the election fraud claims. Amid the election protests, one of Justice Moraes’s deputies ordered another court official to find justification to take action against Oeste, a conservative news outlet, and “all these coup-supporting magazines,” according to leaked text messages published by Folha de São Paulo, one of Brazil’s top newspapers.

The court official replied that he could find only “journalistic publications” on Oeste’s website that “weren’t saying anything,” the messages showed. Justice Moraes’s deputy responded, “Use your creativity lol.” The official said he would “find a way.”

Weeks later, YouTube temporarily blocked Oeste from running ads on its videos, saying it had published “harmful content,” Oeste said. The magazine later said it sued YouTube and, in legal discovery, found an order from Justice Moraes to block Oeste from earning money from YouTube ads. A court spokeswoman denied Justice Moraes sent such an order. YouTube has since reversed the action.

A week after President Luiz Inácio Lula da Silva took office in 2023, hundreds of Mr. Bolsonaro’s supporters stormed Brazil’s halls of power, including the Supreme Court, demanding a coup. They failed, and Justice Moraes has since overseen more than 220 of their convictions.

He has also weakened Mr. Bolsonaro. Brazil’s electoral court, led by Justice Moraes, ruled that the former president could not run in the next election because he tried to undermine the 2022 vote.

Justice Moraes has also authorized police operations against Mr. Bolsonaro and many of his aides in three separate investigations, including into accusations that they planned a coup. Police confiscated Mr. Bolsonaro’s phone and passport.

Mr. Bolsonaro has called the investigations political persecution.

Thousands of Mr. Bolsonaro’s supporters have protested against the court in recent months, calling for Justice Moraes’s impeachment. Last week, a Brazilian congressional committee voted to limit the court’s powers. The bill is unlikely to become law.

In interviews, the justices said that Brazil’s democracy remains under serious threat and that criticizing them undermines their efforts to protect it.

“We’re dealing with dangerous people,” said Justice Barroso, the chief justice. “And we must not forget that.”

But what happens if the court gets it wrong?

“Someone must have the right to make the last mistake,” he said. “I don’t think we’ve gotten it wrong, but the final word is the Supreme Court’s.”

Paulo Motoryn and Lis Moriconi contributed reporting. Flávia Milhorance and Ana Ionova contributed research.

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