JUDICIAL OVERSTAY AND THE WALKING STICK AMENDMENT - Revoking Judicial Appointment Powers in Brazil

Leisure and Kosar (2024) draw a line between abusive and acceptable judicial overstay. In developing their normative argument, the authors assume that condemnable judicial overstay is associated with a kind of connection between the reformer and the sitting judge they qualify under the moniker of loyalty; That is, abusive overstay has to do with the prolongment of loyal judges; mandates by the governing coalition. Here, abusive judicial overstay is but one of a broader court-curbing toolbox in the hands of elected leaders that aim at capturing the judicial branch. Not only can elected officials remove unfriendly judges (manipulation) or add friendly new judges (court-packing), but they can also extend the mandates of friendly judges (court hoarding). In other words, abusive overstay generates the phenomena of court hoarding. This article addresses a different kind of judicial overstay that does not fulfill the conceptual requirements of court hoarding but must nonetheless be deemed as condemnable from a normative point of view. In this specific case, the abuse does not stem from a loyalty connection between the sitting judge and the governing coalition. Rather, this hypothesis of abusive judicial overstay involves an unduly removal of appointment powers from the constitutionally assigned authority, and consequently artificially prolonging judicial terms. More specifically, it has to do with an interbranch tug of war that may only indirectly involve the court and its judges. Instead of a court-curbing mechanism, this abusive judicial overstay must be classified among the broader tools of abusive constitutionalism by which an authority/abuser targets a third-party authority/abused by way of a judicial overstay constitutional change. The article presents the abusive revoking of judicial appointment powers as a normatively unacceptable mode of judicial overstay. The example of a constitutional amendment passed by the Brazilian Congress to illustrate this hypothesis. The case study of the Walking Stick constitutional amendment provides an example of a constitutional change that indirectly revoked judicial appointment powers from the Executive office. The oppositional coalition was successful in extending the compulsory retirement age of Supreme Court justices from 70 to 75 in the context of a constitutional crisis between the elected branches of Government that lead to then-President Dilma Rousseff impeachment. The constitutional amendment, thus, was a mechanism by which the oppositional coalition weaponized the judicial overstay of three justices to render a political defeat to a fragilized Executive office. The case study draws broader lessons to comparative judicial politics, in particular in incorporating the possibility of judicial overstay as a side-effect of Executive-Legislative interbranch crisis. Moreover, it reinforces the fact that the empowerment of high courts worldwide tend to render judicial appointment power as a privileged political currency that might be weaponized by coalitions both within Government and in the opposition.