A palavra em disputa : análise retórica da desobediência judicial às decisões do Supremo Tribunal Federal

Abstract

This study is grounded in a context of institutional tension: on the one hand, the gradual expansion of the authority of the Brazilian Federal Supreme Court (STF) within the Brazilian judiciary since the enactment of the 1988 Federal Constitution; on the other, the growing disobedience of other judicial bodies to the Court’s rulings. To trace this disobedience, the study examines constitutional claims granted by the STF after it found that the challenged decisions had violated its binding precedents. It investigates how such disobedience is rhetorically presented in the challenged judicial decisions and, based on these forms of presentation, seeks to understand the relationship between other judicial bodies and the STF from the perspective of the struggle over the power of nomination and the power to shape legal reality, drawing on the theoretical contributions of Isaac Reis and Pierre Bourdieu. To this end, the study adopts rhetorical analysis as its method to identify the meaning effects produced by the discourse in disobedient decisions, based on a mapping of the rhetorical strategies employed in them. The study covers decisions issued by appellate bodies of the State Courts of Justice, excluding the Federal District, that were challenged through constitutional claims fully granted by the STF between 2017 and 2024. From this study population, 68 judicial decisions were randomly selected for analysis. The study concludes that disobedience is predominantly presented without an explicit challenge to the STF’s authority, a phenomenon referred to as “veiled disobedience”. Half of the decisions mention the STF precedent they contradict, while the other half omit it. Despite this difference, the identified strategies in both situations create an appearance of obedience and correctness through references to the values and rules of the legal system, particularly the STF’s own authority, systemic coherence and the Constitution. The study finds that judicial disobedience takes place from within the law itself, as judges invoke the rules of the legal field to contradict STF rulings – which the legal system requires them to follow – and thereby engage in a struggle over the power to shape the law.