Funding the Judiciary: A Comparative Analysis of the United States and Brazil


So far, 2016 has been a bad year for Brazil. Despite the impeachment of President Dilma Rousseff, all the political instability resulting therefrom and revelations of major corruption schemes, Brazil is undergoing the worst economic recession of the last three decades. In an attempt to make up for the budget deficit, the Executive Branch (along with the Congress) has implemented stringent measures of economic adjustment, mainly by limiting planned spending in the Brazilian Annual Budgetary Law (LOA 2016). This adjustment resulted in a budget cut of 7 billion dollars, provoking a reduction of social programs and agencies’ budgets, infrastructure investment, and, even more objectionable, the judiciary budget.

The LOA 2016 has reduced the Federal Judiciary budget request by 500 million dollars and drastically affected the Labor Judiciary’s (a branch of Federal Judiciary) budget. It had a 90 percent reduction in investment expenditure and 24.9 percent in consumption expenditure. This led to the reduction of open hours of labor courts, the suspension of staff recruitment, and the risk of activities interruption.

This [not-unprecedented] budgetary incident—reminiscent of Fiscal Year 2013 cuts in Budget Sequestration in United States—is a budgetary showdown, that is, a disagreement between branches of government over their budgetary powers. Even though article 99 of the Brazilian Federal Constitution assures administrative and budgetary autonomy to the Judicial Branch, its budget request has to be transmitted to Congress by the President. This procedure makes of the judiciary autonomy a parchment barrier: the President does not have the power to alter the judicial budget request unless it fails to comply with the budgetary directives law (Budgetary Guidelines Law), but in 2011 and 2014 the President (not to mention state Governors) has reduced the Federal Judiciary budget request in advance.

In both years the Brazilian Supreme Court (Supremo Tribunal Federal – STF) ruled unconstitutional the “presidential adjustments” (Writ of Mandamus nº 33186; Writ of Mandamus no. 33193; Claim of Breach of Fundamental Precept no. 240; Writ of Mandamus no. 30896) and ordered the Executive to transmit the original request to Congress. However, in 2016 the President-supporting legislature reduced amount appropriations for the judiciary and the STF, reaffirming a 2007 non-controlling precedent, non-unanimously (8-3) upheld the LOA of 2016 in Direct Action of Unconstitutionality (ADI no. 5468) (In re National Association of Labor Judges), by stating that the Federal Constitution unequivocally grants the legislature the prerogative and legitimacy to discuss the consolidated budget request. Justice Luiz Fux, delivering the opinion of the court, also affirmed that defining budget allocations is one of the most important and traditional legislative functions and deserves to be upheld by the judiciary, at the risk of shunning typical parliamentary duties.

The decision did not have lingering disastrous consequences because a subsequent presidential provisional measure (a special Executive order) granted additional funds to the Labor Judiciary, but this bailout is only a stopgap, as Justice Celso De Mello noted in his dissent at ADI no. 5468. He stated that appropriations manipulation may be an instrument of domination by the Legislature of the other branches, often resulting in the imposition of an unacceptable budget subordination.

This “manipulation”, however, is the law of the land in Brazil, as long as the legislature has the power to pass annual appropriations, as laid down in article 48, item 2 of the Brazilian Federal Constitution. The legislature has the sole power of the purse and whether it provides the funding requested by the judiciary is mainly a political decision. Furthermore, the judiciary does not directly participate in budget planning and the limits of judicial capacity and the merits of Legislative-Executive bargaining undermine the case for judicial superintendence of intermural bargains.

Nevertheless, recurrent budget shortfalls undermine the nation’s administrative organization and are at the very least undesirable in the national routine, so innovative solutions are needed to overcome such deadlocks. “It’s time to end with cuts of the courts’ budget”, but how? The Brazilian appellate judge in the state of São Paulo Adugar Souza Jr. gave the intuitive answer (a response in the Montesquieu’s fashion), saying that neither the Executive Power nor the Legislative Power can cut the Judiciary’s budget, mainly in respect to the separation of powers.

Big problems may have simple solutions, but ascribing to the judiciary the irrevocable prerogative to define its own budget is at best arbitrary, notably because the Brazilian Judiciary already costs a lot. Disregarding non-pecuniary costs (slowness, inefficiency, etc.), the Brazilian Judiciary is one of the most costly in the world, and Brazil spends more than any other OECD member countries on its judicial system. The country, according to research by the Federal University of Rio Grande do Sul, spends 1.35 percent of national GDP to maintain its justice system, as compared to 0.14 percent in the United States, 0.19 percent in Italy and 0.32 percent in Germany. The Judiciary also lacks the legitimacy or the necessary institutional capacities on budget issues. Therefore, preventing drastic and unjustifiable cuts in judicial budget requires proposals that are more refined.

In the United States, the “inherent powers doctrine is a promising weapon either to place the courts on an independent financial footing or to shelter them from the regular budgetary process.” The doctrine, according to G. Gregg Webb and Keith E. Whittington, “licenses the courts to take necessary actions to fulfill their constitutional functions, even when those actions are not specifically authorized by either constitutional text or legislative statute. Inherent judicial power operates as an implicit ‘necessary and proper’ clause to the establishment of the judiciary as an independent and equal branch of government. . . . It is in this more muscular form, as a positive safeguard of judicial independence, that the inherent power doctrine has been extended to budgetary matters.”

Relying upon the doctrine, the Philadelphia Court of Common Pleas (Commonwealth ex rel. Carroll v. Tate) ordered appropriation of additional funds in 1971 as “the [j]udiciary must possess the inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities, and its powers and duties to administer [j]ustice.”

Webb and Whittington recognize that “the inherent judicial power doctrine was developed to be a defensive weapon to protect judges from subversion or obstruction by other officials. It has not traditionally been used to place the courts on an independent financial footing or to shelter them from the regular budgetary process.” Therefore, inherent powers are not a judicial prerogative to do whatever is necessary to enable courts to perform their duties. In Hosford v. State and Folsom v. Wynn state courts ruled that employing the inherent powers doctrine depends on a specific constitutional deficiency produced by meager judicial-system funding and on an absolute-necessity standard. Andrew Yates points out that “an inherent-power doctrine that reserves the power only for absolutely necessary situations and requires a specific constitutional violation will provide judicial systems a useful legal avenue for protecting the critical services that courts provide.”

However, a “more rational inherent judicial power doctrine” is also incompatible with the American and Brazilian constitutional systems, because providing required funds or not is above all a legislative prerogative and a political decision. The use of judicial inherent powers to set appropriations is apparently an arbitrary and capricious decision: it violates the maxim nemo iudex in causa sua and prevents any appropriate revision of the reasonableness, adequacy, or proportionality of the judiciary’s budget request.

The Judiciary holds an underprivileged position in the political arena, yet resolving this impasse rather depends on a joint deliberation of branches and on a more incisive participation (directly or not) of the Judiciary and of the the will of the people (participatory budgeting) in the legislative budget decision-making processes. This participation might be assured by a repertoire of small-scale institutional devices—some intuitive and other more audacious—in order to increase information, legitimacy, accountability, and consensus in the budgetary decision-making process.

For instance, adopting the present Judiciary budget figures as a leading reference for the following year appropriations (rebus sic stantibus clause); performing independent audits of proposed appropriations (liability clause); requiring a legislative super-majority to disregard judicial budget request (super-majority rule); securing a judicial committee the right of propositionally participate in Legislative sessions regarding judiciary appropriations (second-opinion clause); and allowing community members to directly decide about some budget lines (participatory clause), may be a reasonable start.

  • Joe Paulson

    Interesting to read about comparative discussions to get a sense of how other people do things. The budget concern is interesting. I don’t recall much discussion on how courts hear deal with possible abuses there. The matter does arise in local courts at least with inadequate funding arguably available for the interests of justice. It clearly arose in the context of public defender funds.