Independence of the Judiciary: Measuring the Political Bias of the Brazilian Courts
Abstract: The degree of judicial independence has broad implications on economic development. For the executive’s non-expropriation commitment to be credible, it is necessary that the judiciary should be free to impartially mediate disputes between the State and its citizens. The prolific literature on de facto judicial independence misses a key-variable to explain political bias: the government’s discretion in appointing Supreme Court Justices. In this paper we explore a distinct feature of the Brazilian judiciary to assess political bias due to government appointment discretion. As there are two courts: the Supremo Tribunal Federal (STF) and the Superior Tribunal de Justiça (STJ), which deal with similar matters and have different restrictions on the appointment of its members, it is possible to compare the degree of political influence to which they are subject. Therefore, we test (1) if there are differences on the degree of political influence depending on the presidential discretion to nominate a justice, and (2) if the justices make strategic use of their positions, that is, actively benefit the party of the president that has appointed them. We find evidence of the first, but not of the second effect.
