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  • In this paper we use a database

    2018-10-26

    In this paper we use a database of 756 Direct Actions of Unconstitutionality (ADI) judged by the Brazilian Supreme Court (STF) from 2002 to 2012 to analyze the judicial behavior of this court\'s justices. ADIs can be initiated by a relatively broad list of actors (the President, the Attorney General, Governors, the speakers of the House and the Senate, political parties, the Bar Association, other professional organizations and unions) to strike down federal or state laws or other normative acts for not abiding to the Constitution. Thus ADIs are judged directly by the STF rather than having been initiated in other instances of the judiciary. In an ADI the STF directly exerts its role as a constitutional court. The interest in this type of case arises because of the important implications that emerge from an ADI: the decision can overturn a law produced by the Executive or by the Legislature, at both the federal and the state levels. Consequently, contrary to other types of cases where the judicial decision affects only the parties to the process, a decision made in an ADI extend to all of society. A wide range of actors can be involved in any given ADI case, such as the Attorney General and the Union\'s General Advocate (both of which must participate in every case) as well as amicae curiae, which makes for richer analytical possibilities. Also, monocratic decisions or decisions taken by sub-sets of the court – a possibility in other types of cases, are not allowed for ADIs, making them more readily comparable statistically. Finally, an ADI has many of the characteristics of other types of cases considered by the Supreme Court, thus explaining why they l-name are almost the only type of action used in quantitative studies about the Supreme Court, such as Leoni and Ramos (2006), Oliveira (2008), Jaloretto and Mueller (2011), Lannes, Desposato and Ingram (2012) and Ribeiro (2012). This does not mean that the method used here can only be applied to ADIs. In Section 4.3, we use the same procedure on a set of Supreme Court decisions related to the Mensalão trial, in which several politicians were accused of a vote buying scheme. This case fortuitously provided a large set of comparable votes in which all justices participated, thus allowing us to estimate ideal points related to those specific issues. In principle the same could be done to other types of cases (that is, non-ADI and non-Mensalão) however in practice it is unusual to get a sufficiently large and comparable set of cases that meet the statistical requirements (such as all justices voting on each case). The technique used in this paper to estimate the Supreme Court Justices’ ideal points is the NOMINATE (nominal three-step estimation). This method was created by political scientists Keith Poole and Howard Rosenthal (Poole and Rosenthal, 1983, 1997) and uses multidimensional scaling to spatially project preferences using binary votes as inputs. The method was originally conceived to study voting behavior in legislatures, a use for which it is already well established with the ideal point scores widely used by analysts and even the press., The first major output from the paper is the ideal point estimates for all Supreme Court Justices from 2002 to 2012. Because Brazilian justices face mandatory retirement at age 70 there is a quicker turnover of the Court\'s composition than in the US. Consequently we estimate ideal points for nine different compositions of the Court over this period. The list of periods and the composition of the court in each period are shown in Table 1. For each period we provide an ideal point for each justice along two dimensions, which can be conveniently presented in a unitary circle. We are also able to estimate ideal points for the Attorney General and for the Union\'s General Advocate, as they must give their position on every ADI. The former acts as a custodian of the law, while the latter is in charge of representing the Executive in the Supreme Court. This characteristic of the Brazilian Supreme Court allows us to more rigorously make inferences of the STF\'s position relative to the Executive and the Legislature (or at least the Law) and may eventually be useful for analysis of strategic behavior. As a means to test the goodness of fit of the estimated ideal points they are used to ‘predict’ the actual votes in each period. The accuracy varies from one period to the next, but more than 90% of the votes are always correctly ‘predicted’, indicating that the ideal point we estimate are a good measure to locate the justices’ policy preferences.