The author, wife of one of Brazil’s foremost historians, José Honório Rodrigues, shows in these two slender volumes that she is no mean historian in her own right. Thoroughly researched and documented, these books inaugurate a much needed and impressive scholarly project on the work of the Brazilian Supreme Court (Supremo Tribunal Federal). While writers have devoted much attention to most Brazilian legal institutions, they have sadly neglected the Supreme Court, recently labelled by one of its present-day members as “this other unknown.”
During the early years after the court’s inception, its personnel, with an exception or two, was mediocre, its rate of turnover and absenteeism high, and its performance as a guardian of constitutional guarantees uneven. To be sure, these were years of insurrection and military quasidictatorship. Standing up to the Executive was a risky business. When a petition for habeas corpus was brought to free a number of illustrious political prisoners, Brazil’s military president, Floriano Peixoto, was reputed to have remarked: “If the judges of the court grant habeas corpus to the politicians, I know not who will grant habeas corpus tomorrow to the judges, who will be the next to need it.” The court prudently declined to issue the writ. The story has a strikingly current ring to it, considering the great pressure placed on the court by the present military government.
The author’s approach is basically to state the facts surrounding many of the most important cases decided by the court during these periods and then to summarize or quote from the opinions of the various judges. Occasionally the dispute is followed into the forum of the newspapers. She profits from her wide knowledge of U.S. constitutional law and history to draw helpful analogies and comparisons. Only occasionally does she lapse, as in the statement: “Even today, in the United States the Supreme Court’s understanding is that the guarantees of the Fourteenth Amendment with respect to the Bill of Rights . . . limit only the Federal Government and not the Governments of the States” (I, 150). The “selective incorporation” of the Bill of Rights into the due process clause of the Fourteenth Amendment was already well advanced by 1965, and the author corrects her own error in Volume II (p. 94).
Both volumes in this study are rather unpretentious. They attempt to set out as objectively as possible what the Brazilian Supreme Court did during the periods under consideration. It is a welcome relief to see such close attention paid to the cases decided by the Court, though the detachment with which they are presented occasionally tends to stifle their drama. All too frequently the author serves up a procedural analysis of what transpired, motion by motion, replete with copious excerpts from the opinions of individual judges. (Unfortunately, there is seldom a single opinion of the court, as is normally the case in the United States.) Consequently, parts of both volumes drag somewhat. More of the background and the judges’ personalities emerges from the extremely useful appendices than from the text itself. More important, there is virtually no legal analysis of the issues involved or of the correctness with which they were resolved. One looks in vain for a discussion concerning the inadequacy of Brazilian procedure for effective judicial review, which ultimately led to the extraordinary expansion of the writ of habeas corpus and the development of the mandado de segurança.
Despite these reservations, it is clear that Lêda Boechat Rodrigues has opened up a veritable treasure trove of material for the lawyer and historian. One looks forward to the remaining volumes of this study, which will be an indispensable reference work for anyone concerned with the development of Brazilian institutions.
