He is Brazil’s defender of democracy. Is he actually good for democracy?
Brazilian Supreme Court Justice Alexandre de Moraes prepares to speak with reporters in Brasilia, Brazil on Sunday, Oct. 2, 2022.
By JACK NICAS
When Brazil’s highway police began holding up buses full of voters on election day, he ordered them to stop.
When right-wing voices spread the baseless claim that Brazil’s election was stolen, he ordered them banned from social media.
And when thousands of right-wing protesters stormed Brazil’s halls of power this month, he ordered the officials who had been responsible for securing the buildings arrested.
Alexandre de Moraes, a Brazilian Supreme Court justice, has become Brazil’s lead defender of democracy. Using a broad interpretation of the court’s powers, he has pushed to investigate and prosecute, as well as to silence on social media, anyone he deems a menace to Brazil’s institutions.
As a result, in the face of antidemocratic attacks from Brazil’s former far-right president, Jair Bolsonaro, and his supporters, de Moraes cleared the way for the transfer of power. To many on Brazil’s left, that made him the man who saved Brazil’s democracy.
Yet, to many others in Brazil, he is threatening it. De Moraes’ aggressive approach and expanding authority have made him one of Brazil’s most powerful people and also put him at the center of a complicated debate in Brazil over how far is too far to fight the far right.
De Moraes, 54, has jailed people without trial for posting threats on social media; helped sentence a sitting congressman to nearly nine years in prison for threatening the court; ordered raids on businessmen with little evidence of wrongdoing; suspended an elected governor from his job; and unilaterally blocked dozens of accounts and thousands of posts on social media, with virtually no transparency or room for appeal.
In the hunt for justice after the riot this month, he has become further emboldened. His orders to ban prominent voices online have proliferated, and now he has the man accused of fanning Brazil’s extremist flames, Bolsonaro, in his crosshairs. Last week, de Moraes included Bolsonaro in a federal investigation of the riot, which he is overseeing, suggesting that the former president inspired the violence.
His moves fit into a broader trend of Brazil’s Supreme Court increasing its power — and taking what critics have called a more repressive turn in the process.
Many legal and political analysts are now sparring over de Moraes’ long-term impact. Some argue that his actions are necessary, extraordinary measures in the face of an extraordinary threat. Others say that, acting under the banner of safeguarding democracy, he is instead harming the nation’s balance of power.
“We cannot disrespect democracy in order to protect it,” said Irapuã Santana, a lawyer and legal columnist for O Globo, one of Brazil’s biggest newspapers.
Santana voted in October for Luiz Inácio Lula da Silva, the new leftist president, but said he worried that many in Brazil were cheering on de Moraes without considering the potential consequences. “Today he’s doing it against our enemy. Tomorrow he’s doing it against our friend — or against us,” he said. “It’s a dangerous precedent.”
Milly Lacombe, a left-wing commentator, said such concerns missed a bigger danger, evidenced by the riots and a foiled bomb plot to disrupt Lula’s inauguration. She argued, in her column on Brazilian news site UOL, the far right posed perils to Brazil’s democracy, which should overshadow concerns about free speech or judicial overreach.
“Under the threat of a Nazi-fascist-inspired insurrection, is it worth temporarily suppressing individual freedoms in the name of collective freedom?” she wrote. “I would say yes.”
The dispute has illustrated a larger global debate not only on judicial power but about how to handle misinformation online without silencing dissenting voices.
Twitter’s owner, Elon Musk, weighed in that de Moraes’ moves were “extremely concerning.” Glenn Greenwald, an American journalist who has lived in Brazil for years and has become a critic of certain social-media rules, debated a Brazilian sociologist last week about de Moraes’ actions. And Brazilian officials have suggested that they would consider new laws to address what can be said online.
De Moraes has declined requests for an interview for more than a year. The Supreme Court, in a statement, said de Moraes’ investigations and many of his orders have been endorsed by the full court and “are absolutely constitutional.”
In the hours after the riot, de Moraes suspended the governor of the district responsible for security for the protest that turned violent and ordered the arrests of two district security officials.
Still, there is little support in the Supreme Court for arresting Bolsonaro, because of a lack of evidence as well as fears that it would prompt unrest, according to a senior court official who spoke on the condition of anonymity to discuss private conversations.
Multiple Supreme Court justices instead prefer to try to convict Bolsonaro for abusing his power through the country’s election agency, making him ineligible to run for office for eight years, the official said.
Bolsonaro, who has been in Florida since Dec. 30, has long accused de Moraes of overstepping his authority and has tried to impeach him. Bolsonaro’s lawyer said he had always respected democracy and repudiated the riots.
De Moraes spent decades as a public prosecutor, private lawyer and constitutional law professor.
He was appointed to the Supreme Court in 2017, a move denounced by the left because he was aligned with center-right parties.
In 2019, the Supreme Court’s chief justice issued a one-page order authorizing the court to open its own investigations instead of waiting for law enforcement. For the court — which, unlike the U.S. Supreme Court, handles tens of thousands of cases a year, including certain criminal cases — it was a drastic expansion of authority.
The chief justice tapped de Moraes to run the first inquiry: an investigation into “fake news.” De Moraes’ first move was to order a magazine to retract an article that had linked the chief justice to a corruption investigation. (He later rescinded the order when the magazine produced evidence.)
De Moraes then shifted his focus to online disinformation, primarily from Bolsonaro’s supporters. That gave him an outsize role in Brazilian politics that grew further this year when, by chance, his rotation as Brazil’s election chief coincided with the vote.
In that job, de Moraes became Brazilian democracy’s chief guardian — and attack dog. Before the vote, he cut a deal with the military to run additional tests on voting machines. On election day, he ordered the federal highway police to explain why officers were stopping buses full of voters. And on election night, he arranged for government leaders to announce the winner jointly, a show of unity against any attempt to hold onto power.
In the middle of that group of leaders was de Moraes. He delivered a forceful speech about the value of democracy, drawing chants of “Xandão,” which is Portuguese for “Big Alex.” “I hope from the election onward,” he said, “the attacks on the electoral system will finally stop.”
They did not. Right-wing protesters demonstrated outside military bases, calling on the military to overturn the vote. In response, de Moraes ordered tech companies to ban more accounts, according to a senior lawyer at one major tech firm, who spoke on the condition of anonymity out of fear of angering de Moraes.
Among the accounts de Moraes ordered taken down are those of at least five members of Congress, a billionaire businessman and more than a dozen prominent right-wing pundits, including one of Brazil’s most popular podcast hosts.
De Moraes’ orders to remove accounts do not specify why, according to the lawyer and a copy of one order obtained by The New York Times. Visits to banned accounts on Twitter yield a blank page and a blunt message: The “account has been withheld in Brazil in response to a legal demand.” And account owners are simply told they are banned because of a court order and should consider contacting a lawyer.
The lawyer said that his tech firm appealed some orders it viewed as overly broad, but that de Moraes denied them. Appeals to the full bench of judges have also been denied or ignored, this person said.
Multiple social networks declined to comment on the record for this article. De Moraes is a potential threat to their business in Brazil. Last year, he briefly banned Telegram in the country after it did not respond to his orders.
There were talks recently among some justices about the need to bring de Moraes’ investigations to an end, according to the court official, but after the Jan. 8 riot, those talks ceased. The riot has increased support for de Moraes among his peers, according to the official.
Beatriz Rey, a political scientist at the State University of Rio de Janeiro, said de Moraes’ approach, though not ideal, is necessary because other branches of the government, especially Congress, have skirted their duties.
“You shouldn’t have one justice fighting threats to democracy over and over again,” she said. “But the problem is the system itself is malfunctioning right now.”