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In Court

A Justice for the Ages

Brazil’s Luís Roberto Barroso brings his passion for democracy and commitment to justice to his nation’s Supreme Court.

Brazilian Chief Justice Luís Roberto Barroso. PHOTO: Herbert Covre 

In September of 2023, Luís Roberto Barroso was sworn-in as the 51st Chief Justice of the Supreme Court of Brazil. The law professor and jurist has built a reputation as a progressive force, fighting to protect the electoral process and democratic institutions of Brazil and his nomination to the court faced opposition from far-right lawmakers. In his storied career, he has advocated for issues like gender equity, environmentalism, and the protection of Brazil’s Indigenous population. Barroso has traveled the world as a visiting lecturer, including at University of Poitiers, in France, University of Wroclaw, in Poland, and is the author of a number of articles and books, including recent writings on the role of the judicial branch in the protection of the Amazon.

Last April, Justice Barroso spoke at Harvard and MIT on democracy, corruption, human rights, and more. BC Law LLM student, Herbert Covre, sat down with the him to speak about his career, the role of the judiciary—and to impart this wisdom for the students of BC Law. “Law is a wonderful profession if you do it with passion,” Justice Barroso said. “And I would say I think it’s very important in life to choose the right side of history and to make sure you know where your heart is, because following it is the only way for you to be happy.”

Justice Barroso is also speaking at BC Law School tomorrow, March 27, from 12-1 in the Faculty Lounge.

(This 2023 interview has been edited and condensed for length and clarity.)

Herbert Covre: I want to start by talking about how corruption can erode democracy, and the judicial branch’s role in the fight against that.

Justice Luís Roberto Barroso: Corruption critically affects a democracy because it distorts the public interest, and it means the appropriation of the public space by private interests. I think the judicial branch has a decisive role in fighting corruption. In Brazil, unfortunately, this role has not been played as well as it should.

HC: Democracy is at risk in many countries, even here in the United States. Are the constitutional courts the last resort to uphold democracy?

Justice Barroso: I think constitutional courts have a very important role in upholding democracies. However, they cannot play this game alone. So, they need the support of the press, of civil society, and of the legislature—when possible. When the constitutional courts become alone in this fight, they lose. As it happened in Russia, in Hungary, in Poland, and in other countries.

HC: How does your background in humanities impact your current role on the Court?

Justice Barroso: I think constitutional interpretation is an act of humanism. The Constitution is the project of three major historical and philosophical movements: Contractualism, Enlightenment and Liberalism. And I think these three movements do affect the way I see the world and the way I interpret the Constitution. Part of our role is to push history in the right direction by fighting inequalities and trying to promote freedom and equal opportunities for everyone.

HC: In recent years, we’ve seen an increase in the international protection of fundamental rights. In your view, how compatible are the national and international judicial systems?

Justice Barroso: I think the European Court of Human Rights has played a major role in Europe. The Inter-American Court of Human Rights in Latin America is becoming more and more important. And I think the same is happening, or will be happening,  in Africa. I think the struggle for human rights has become a global struggle, and I think it’s good that there are international courts, especially in order to put pressure on countries where democracy has failed.

HC: As of 2023, it will have been a decade since you were appointed as a justice. Do you have any majority or dissenting opinions that hold special significance?

Justice Barroso: Ten years? Oh, it feels like an eternity! A dissenting opinion that I thought was very important and that I was unhappy that it didn’t prevail was one regarding confessional religious teaching in public schools. I do think that religion is very important, but it should be out of the public space, mostly. And I have written important decisions in favor of pregnant women, of transgender individuals, and of affirmative action. I also authored a decision reducing the jurisdiction of the court in criminal cases that I think was very important. But picking your best opinion is like picking your favorite son or daughter: You shouldn’t have one.

HC: I’m curious about your thoughts on the role of amici curiae and public hearings within the Brazilian judicial system.

Justice Barroso: I think the public hearings and the amici curiae briefs are a very important part of the Brazilian institutional arrangement. I know most courts in the world don’t have the power to hold public hearings, but, in Brazil, one must understand that the Constitution is very comprehensive, and it deals with issues that in many parts of the world are left for politics.

So, we do have a political question doctrine, but the Constitution has so many rules regarding the environment, regarding the tax system, regarding education, regarding the protection of Indigenous communities, that sometimes we need to deal with issues that in other countries would be dealt with by the legislature. And, in order to gather proper information we need public hearings, which have worked well in Brazil. And the amicus curiae’s participation in law cases before the Supreme Court is a very important way for society to participate in the judicial process in a country where many political issues become legal because of the Constitution.

HC: Throughout your career, it was your choice to be a professor and a lawyer, but you were chosen to be a judge; talk to me about that trajectory and what each role means to you.

Justice Barroso: I am basically a professor. That’s my profession, that’s my job. I happen to be a judge and I have been for 10 years, and I’ve put my best effort. But I go on teaching, writing, and giving talks, and that’s a very important part of my life. I think its possible to combine being a professor and being a judge and, to be true, I think one helps the other.

HC: You published an article on human dignity in the Boston College International and Comparative Law Review. Can you speak to how you contextualize human dignity in contemporary law?

Justice Barroso: I spent a year here as a visiting scholar in Harvard, and my deal with the university was that I would write a piece on human dignity—which I wrote, and I published [at BC Law]. At the time it was a developing concept and I was trying to give more precise contours to the idea of human dignity. It is a concept used often in litigation—many times to try to prove an argument. I must say that human dignity is a very important concept; many important fundamental rights derive from it. But, as an autonomous concept, it’s still downplayed. It still has an important symbolic role, but it has not become a powerful legal concept. Usually, people will mention human dignity to reinforce an argument of equality, of individual freedom, of sexual orientation or of women’s rights. But as an autonomous concept it unfortunately has remained a limited idea so far.

HC: In 2017 you wrote an article on Shakespeare’s Julius Cesar. In it, you say: “Idealism stands for public life as love is for private life; to have an ideal means to live for goals that are beyond the immediate self-interest.” I want to close by asking you, are you still an idealist?

Justice Barroso: Oh, yes! Always. There’s no way we can live without having an ideal. And there’s a good quote by Nelson Mandela—I’ll try to translate from Portuguese: “It is what difference we have made to the lives of others that will determine the significance of the life we lead.” So yes, of course people are self-interested in many things, but theres no way a good life can be lived without idealism, without thinking of the other and trying to make the world better.

Herbert Covre is an LLM candidate at BC Law School.