DA MIHI FACTUM, DABO TIBI IUS: WITHOUT IMPARTIAL FACT-FINDING, THERE CAN BE NO EQUAL JUSTICE UNDER LAW
“Give Me the Facts, and I Will Give You the Law” — Scott Erik Stafne Questions Brazilian Jurists on the Fundamental Duties of Courts, Judicial Impartiality, and Equal Justice Under Law
EROS ROBERTO GRAU, FORMER JUSTICE OF BRAZIL’S SUPREME FEDERAL COURT (STF): JURISDICTION, THE INTERPRETATION OF LAW, AND THE ROLE OF JUDGES IN APPLYING THE LAW TO THE FACTS.
International Constitutional Law & Human Rights
Are the Courts Fulfilling Their Constitutional Duty?
Scott Erik Stafne 's Question to Brazil in an International Legal Debate with Dr. Ronaldo Nobre , Marcia Almeida, Josevita Pontes, and Jayakrishnan Krishna Nair.
“ Do you see that in the courts of Brazil, there may sometimes be a problem that is systemic and structural?”
Scott Erik Stafne · International Legal Discussion · 4 October 2026What happens when courts fail to establish the facts, disregard the law governing those facts, or cease to function as independent and impartial courts?
This question reaches the foundations of constitutional government.
The authority of courts depends not only on their institutional status, but also on the lawful performance of their constitutional responsibilities.
On 4 October 2026, Scott Erik Stafne , an American constitutional-law jurist and scholar drawing upon fifty years of professional legal experience, raised this fundamental question during an international legal discussion with Ronaldo Nobre , a Brazilian lawyer, jurist and professor of Civil Law and Civil Procedure, professionally active in Brazil's Federal District.
The discussion brought two legal traditions into direct dialogue: the American constitutional system, with its tradition of judicial review and common-law precedent, and the Brazilian constitutional order, grounded in the 1988 Constitution, codified civil procedure and express guarantees of judicial protection.
At the center of the exchange was a question transcending national boundaries: whether recurring failures in the administration of justice may reveal institutional problems rather than isolated judicial errors.
The inquiry also invites comparison with two important public statements by Eros Roberto Grau , jurist, professor and former Justice of Brazil's Supreme Federal Court, concerning the constitutional duty of judges to apply the Constitution and the law.
The analysis that follows examines the question through American and Brazilian constitutional jurisprudence, international human-rights instruments, and published research on public confidence in judicial institutions.
I. The International Legal Debate of 4 October 2026
The meeting brought together American and Brazilian participants concerned with constitutional supremacy, procedural justice, judicial integrity and independence, legal certainty, property rights, and access to effective remedies.
Scott Erik Stafne participated as an American constitutional-law scholar, with professional experience dating from 1976. He is the initiator, co-founder and Advocate of The Church of the Gardens.
Dr. Ronaldo Nobre contributed his experience as a Brazilian lawyer, jurist and professor of Civil Law and Civil Procedure, working in the Federal District.
The discussion also addressed the organization of international legal-education webinars, through which American and Brazilian professionals could examine their respective constitutional and procedural systems.
The participants did not necessarily share identical interpretations of every issue.
Scott expressly qualified his initial response to the preceding remarks before inviting the Brazilian legal professional to present his perspective.
Scott said:
What I'd like to
hear is what the distinguished lawyer from Brazil, what his perspective is with
regard to whether Brazil may have a problem.
In the United
States, where I think we have a problem is that courts don't appear to be doing
what they're designed to do in certain cases.
(0:37 - 4:43)
And when I say
designed to do, I mean, and this is just, I think this is pretty well accepted
around the world, but what I'm saying, what I believe is courts are supposed to
act as fact finders, either through juries or through judges, and they're
determined the facts fairly and accurately through fact finders, which are not
biased. Then after the facts have been determined, the courts are to apply
those laws which presently exist to those facts to determine what the outcome
will be. In the United States, for example, in cases involving mortgages and
the successors and assignments of mortgages, my experience in the last couple
of decades or decade is that courts will not do the fact finding, and
consequently, they won't apply the law.
And I have come
to believe, based on 50 years of experience in practicing law, that they are
doing that purposely, that it's it's not a mistake. It's because the courts are
not independent because the judges or the fact finders have become dependent.
And I know that mostly the law through American law, although I have done quite
a bit of research and spoken with regard to the international standards for
judicial recusal and what I believe to be the international public law
standards for recusals since the Nuremberg judges trial and since the
ratification of the 1948 treaty.
So that's where I
am understanding we're coming from. Do you see that in the courts of Brazil,
there may sometimes be a problem that is systemic and structural? Because I
don't think a bad result here and there is, I don't think you can expect that
you won't have it.
But I think mankind and humankind can expect and should expect that they have a right to natural justice as ordained through what is now what I believe the international way of adjudication. Am I saying, I sometimes don't speak clearly.
Have I spoken clearly enough to make you understand what I'm trying to say?
Accordingly, statements made by different participants must be attributed to their respective speakers.
II. The Constitutional Function of Courts: Determining Facts and Applying Existing Law
Scott explained his understanding of the function of courts in a constitutional legal system.
“In the United States, where I think we have a problem, is that courts don't appear to be doing what they're designed to do in certain cases.” Scott Erik Stafne
Stafne emphasized that courts ordinarily determine facts through judges or juries and that factual determinations must be fair, accurate and impartial.
He then described the responsibility to apply the laws governing those facts:
“Then after the facts have been determined, the courts are to apply those laws which presently exist to those facts to determine what the outcome will be.”
Scott referred to his experience with American cases involving mortgages, successors to mortgage interests and assignments of mortgages.
He expressed concern that, in some proceedings, courts had failed to undertake the required factual inquiry and consequently had not applied the governing law.
He also expressed his personal assessment that some institutional failures could be related to deficiencies in judicial independence.
The responsibilities of judges and juries must also be understood within the applicable procedural framework: pleadings, discovery, summary judgment and trial involve different legal standards.
III. The Question to Brazil: Judicial Error or Structural Failure?
Stafne distinguished the possibility of an occasional incorrect judicial outcome from the possibility of recurring institutional deficiencies.
An unfavorable judgment, by itself, does not establish corruption or systemic failure.
A structural problem requires a more demanding inquiry: whether institutional arrangements or recurrent judicial practices prevent the ordinary operation of constitutional safeguards.
Such an inquiry must consider documented facts, procedural records, the allocation of judicial authority, the independence of adjudicators, the right of defense, and the availability of effective legal remedies.
The central issue is not whether courts sometimes err. It is whether the institutions responsible for correcting errors continue to perform their constitutional functions.
IV. Witnessing, Public Discernment and the Purpose of the Debate
During the meeting, Scott expressly redirected the discussion away from an exclusive examination of his own professional circumstances.
He explained that he wished to emphasize the role of a witness who presents facts and observations for others to examine.
“I want to be a witness so we can let the people be the judge.”
Scott also emphasized that people should be free to reach different conclusions after examining the facts.
He recognized the possibility of error in his own assessments and the importance of sincere disagreement.
His reflections included a Christian understanding of moral responsibility, especially love of God and love of one's neighbor.
These religious convictions form part of his personal explanation of witnessing.
The comparative legal analysis in this article, however, rests upon public constitutional norms, judicial precedents, procedural law, and international human-rights instruments.
V. Dr. Ronaldo Nobre: Civil Law, Civil Procedure and Legal Certainty in Brazil
Dr. Ronaldo Nobre, a lawyer, jurist and professor of Civil Law and Civil Procedure, brought the perspective of Brazil's legal system to the international exchange.
His contribution addressed the importance of legal certainty, consistent judicial interpretation, and effective enforcement of constitutional and statutory guarantees.
The discussion included concerns about varying interpretations among judicial instances, procedural irregularities, legal uncertainty, and the protection of substantive rights.
These issues are particularly relevant in a legal system whose civil procedure is governed by a national code expressly subordinated to constitutional principles.
A question of constitutional supremacy
Scott also raised an important question: what happens when ordinary legislation or a procedural rule conflicts with the Constitution?
In Brazil, that issue involves constitutional review, the supremacy of the 1988 Constitution, the allocation of judicial competence, and the procedures available to challenge unconstitutional acts or legal provisions.
Scott additionally discussed changes he had observed concerning oral arguments in American courts.
He expressed concern about situations in which oral advocacy becomes discretionary and material arguments are not adequately addressed.
These observations provide a meaningful starting point for comparison with Brazil's constitutional duty to provide reasoned decisions, the guarantees of adversarial procedure and full defense, and Article 489 of the Brazilian Code of Civil Procedure.
VI. Eros Roberto Grau: The Judge Must Apply the Constitution and the Law
The reflections of former Supreme Federal Court Justice Eros Roberto Grau provide an independent Brazilian constitutional perspective on the duties of judges.
His statements are presented as independent sources for comparative jurisprudential analysis.
Video I — Constitutional Supremacy and the Limits of Personal Values
Original Portuguese transcription
"What is most important is that we establish the following: that law is positive law, founded on rules."
Principles are expressions of values, and each citizen may hold, according to their beliefs and discretion, these or those principles.
What is fundamental is that the Constitution be upheld and that the courts and judges, especially the Supreme Federal Court, apply the Constitution, not the values of each individual.”
English translation
“What is most important is that we establish the following: law is positive law, grounded in rules. Principles express values, and each citizen may hold, according to their beliefs and judgment, this or that principle. What is fundamental is that the Constitution be complied with, and that courts and judges, especially the Supreme Federal Court, apply the Constitution, not each individual's personal values.”
Grau's statement emphasizes that the legitimacy of judicial action depends upon compliance with the Constitution and the legal order.
Judges must not substitute their personal preferences for the constitutional framework governing their decisions.
Video II — Judicial Prudence and the Absence of an Audience
Original Portuguese transcription
"The law is allographic in this sense. That is, the judge is the interpreter who transforms the text of the Constitution and the law into a legal norm and who makes the decision."
But in law, there is no audience, or at least there shouldn't be.
The judge is not there to produce aesthetic pleasure in anyone.
The judge is there to apply the Constitution or the law.
And there is no audience, he doesn't have to work for an audience, he has to be discreet, serene, prudent, because law is prudence, not an art.”
English translation
“Law is allographic in this sense. That is to say, the judge is the interpreter who transforms the text of the Constitution and legislation into a legal norm and makes the decision. But law has no audience, or at least it should not have one. The judge is not there to produce aesthetic pleasure for anyone. The judge is there to apply the Constitution or the law. There is no audience. The judge does not have to perform for an audience. The judge must be discreet, calm and prudent, because law is a matter of practical judgment, not an art.”
Grau's reference to the allographic nature of law recognizes the interpretative role of the judge.
It is not a theory of purely mechanical or literal application of legal texts.
Judicial interpretation is necessary, but it must remain within the constitutional and legal framework.
The comparative connection with Scott's observations concerns the duties of constitutional adjudication.
Eros Grau claims that judicial independence is intrinsically linked to the judges' obedience to the law . According to him, a democracy cannot exist without judges being, in practice, servants of the law, questioning the transformation of the Rule of Law into a "State of Judges" where this subordination to legal norms might be neglected.
https://www.youtube.com/live/_zbnO12z5Eg?is=vGryd1FrN3MPsEuH
The video presents a Master Lecture conducted by the renowned jurist and former Justice of the Brazilian Supreme Federal Court (STF), Eros Grau, on the subject “The Interpretation of Law by Judges.” The lecture is organized by Estratégia Carreira Jurídica and moderated by Michael Procópio.
Main points addressed by Justice Eros Grau:
Distinction between text and norm: The professor emphasizes that the legislative branch produces the text (or normative provision), but it is the judge, as the authentic interpreter, who produces the legal norm when applying it to a concrete case (10:31–12:44).
Law as prudence: The lecturer argues that legal interpretation is not an exact science, but rather a form of prudence (practical wisdom), in the Aristotelian sense, aimed at finding the correct decision in each case (41:23–42:33).
Criticism of judicial activism and balancing: Eros Grau expresses concern about the current practice of courts replacing constitutional review with the “balancing of principles” or with the review of “reasonableness/proportionality,” which he considers a source of legal uncertainty (58:00–1:00:00).
The role of the judge: He maintains that the judge must be a “servant of the law” and that modern law is based on the objectivity of the law, rather than on the subjective pursuit of personal justice or public opinion (49:49–52:00).
At the end, the professor reinforces the importance of maintaining legal positivism as a safeguard for citizens’ legal certainty and answers questions from viewers about the future of the Supreme Federal Court.
VII. Constitutional Supremacy, Fact-Finding and Legal Interpretation
The classical maxim da mihi factum, dabo tibi ius — “Give me the facts, and I will give you the law” — expresses a fundamental distinction between the establishment of facts and the application of the governing law.
The related principle iura novit curia — “The court knows the law” — emphasizes the judicial responsibility to identify and apply applicable legal provisions.
Neither maxim eliminates the requirements of procedural fairness, adversarial participation, evidentiary standards or judicial impartiality.
The inscription on the United States Supreme Court building, “Equal Justice Under Law,” expresses an enduring constitutional aspiration.
In the United States, Article VI, Clause 2, establishes the supremacy of the federal Constitution.
In Brazil, the constitutional order likewise recognizes the supremacy of the Constitution and the limits it imposes on governmental authority.
VIII. Ten United States Supreme Court Precedents Relevant to the International Debate
1. Marbury v. Madison (1803)
5 U.S. (1 Cranch) 137.
The decision established a foundational understanding of judicial review and the constitutional duty of courts to interpret and apply the law.
“It is emphatically the province and duty of the judicial department to say what the law is.”
2. McCulloch v. Maryland (1819)
17 U.S. (4 Wheat.) 316.
This decision addresses constitutional interpretation, federal authority and the distribution of governmental powers.
“In considering this question, then, we must never forget that it is a Constitution we are expounding.”
3. Tumey v. Ohio (1927)
273 U.S. 510.
The Supreme Court examined a judicial arrangement creating a financial interest in the outcome of adjudication.
Its constitutional importance concerns the objective requirements of an impartial tribunal.
4. Mullane v. Central Hanover Bank & Trust Co. (1950)
339 U.S. 306.
The decision addresses adequate notice and the opportunity to participate in proceedings affecting protected interests.
It establishes an important due-process standard for procedures intended to inform interested parties.
5. In re Murchison (1955)
349 U.S. 133.
“A fair trial in a fair tribunal is a basic requirement of due process.”
The decision addresses judicial impartiality and the incompatibility of certain judicial functions with the guarantees of due process.
6. Mathews v. Eldridge (1976)
424 U.S. 319.
The Supreme Court established a framework for evaluating procedural due-process requirements in the context of administrative benefits.
The analysis considers the affected private interest, the risk of erroneous deprivation, and the governmental interest.
The decision does not establish a universal entitlement to oral argument in every judicial proceeding.
7. Anderson v. Liberty Lobby, Inc. (1986)
477 U.S. 242.
This decision explains the judicial role in determining whether a genuine dispute of material fact requires trial.
“The judge's function is not himself to weigh the evidence and determine the truth of the matter.”
Its relevance to Scott's observations concerns the limits of judicial fact-finding at the summary-judgment stage.
8. Boumediene v. Bush (2008)
553 U.S. 723.
The Supreme Court examined the constitutional protection of habeas corpus and the availability of meaningful judicial review.
Its comparative significance lies in the constitutional requirement that governmental authority remain subject to effective legal constraints.
9. Caperton v. A. T. Massey Coal Co. (2009)
556 U.S. 868.
The Supreme Court recognized that exceptional circumstances may create a constitutionally intolerable probability of judicial bias.
The case is particularly relevant to the objective assessment of judicial impartiality.
10. Williams v. Pennsylvania (2016)
579 U.S. 1.
The decision concerns judicial disqualification, prior prosecutorial participation and the constitutional consequences of a failure to recuse.
“An unconstitutional failure to recuse constitutes structural error.”
A structural constitutional error in an individual proceeding must not be confused with a factual determination that an entire judicial system suffers from systemic corruption.
IX. Brazil's Constitution and the Code of Civil Procedure
The Constitution of the Federative Republic of Brazil of 1988 provides guarantees directly relevant to the questions raised during the meeting.
Constitutional guarantees
Article 2: separation of powers.
Article 5, XXXV: access to judicial protection.
“a lei não excluirá da apreciação
do Poder Judiciário lesão
ou ameaça a direito;”
Article 5, XXXVI: protection of acquired rights, perfected legal acts and final judgments.
Article 5, LIV: due process of law.
“ninguém será privado
da liberdade ou de seus bens
sem o devido processo legal;”
Article 5, LV: adversarial procedure and full defense.
“aos litigantes,
em processo judicial ou administrativo,
e aos acusados em geral
são assegurados o contraditório
e ampla defesa,
com os meios e recursos
a ela inerentes;”
Article 93, IX: constitutional duty to provide reasons for judicial decisions.
Article 133: constitutional recognition of the lawyer's indispensable role in the administration of justice.
Article 1 of the Brazilian Code of Civil Procedure
The Brazilian Code of Civil Procedure expressly recognizes the Constitution as the normative foundation of civil adjudication.
“Art. 1º O processo civil será ordenado,
disciplinado e interpretado conforme
os valores e as normas fundamentais
estabelecidos na Constituição
da República Federativa do Brasil,
observando-se as disposições deste Código.”
English translation:
“Article 1. Civil procedure shall be organized, regulated and interpreted in accordance with the fundamental values and norms established by the Constitution of the Federative Republic of Brazil, with due observance of the provisions of this Code.”
Other provisions of particular relevance include Article 10, concerning participation in the formation of judicial decisions; Article 370, concerning evidence; Article 371, requiring judicial assessment of the evidence and an explanation of the reasons supporting the decision; Article 373, concerning the burden of proof; and Article 489, §1, IV, concerning materially relevant arguments.
Together, these provisions establish the Brazilian procedural framework for analyzing factual determination, legal reasoning, adversarial participation, and effective defense.
X. Brazil's Supreme Federal Court: MS 23.452/RJ and Constitutional Control of Power
In Mandado de Segurança No. 23.452/RJ, Justice Celso de Mello examined constitutional limits on governmental authority.
The case concerned judicial review of acts of a parliamentary commission of inquiry.
The reasoning emphasizes that separation of powers must not become a shield for arbitrary or unconstitutional governmental conduct.
Selected original Portuguese excerpt
Read the selected passage from MS 23.452/RJ
A essência do postulado da divisão funcional do poder, além de derivar da necessidade de conter os excessos dos órgãos que compõem o aparelho de Estado, representa o princípio conservador das liberdades do cidadão e constitui o meio mais adequado para tornar efetivos e reais os direitos e garantias proclamados pela Constituição.
Esse princípio, que tem assento no art. 2º da Carta Política, não pode constituir e nem qualificar-se como um inaceitável manto protetor de comportamentos abusivos e arbitrários, por parte de qualquer agente do Poder Público ou de qualquer instituição estatal.
O Poder Judiciário, quando intervém para assegurar as franquias constitucionais e para garantir a integridade e a supremacia da Constituição, desempenha, de maneira plenamente legítima, as atribuições que lhe conferiu a própria Carta da República.
O regular exercício da função jurisdicional, por isso mesmo, desde que pautado pelo respeito à Constituição, não transgride o princípio da separação de poderes.
O CONTROLE DO PODER CONSTITUI UMA EXIGÊNCIA DE ORDEM POLÍTICO-JURÍDICA ESSENCIAL AO REGIME DEMOCRÁTICO.
Comparative constitutional significance
The decision recognizes constitutional limits on governmental authority and the legitimacy of judicial intervention to preserve constitutional guarantees.
Its reasoning is relevant to the broader principle that no branch of government enjoys unrestricted authority.
However, MS 23.452/RJ concerned parliamentary investigative powers.
It did not adjudicate a disciplinary case against judges or establish systemic judicial corruption.
XI. Reasoned Judicial Decisions: STF Theme 339
The Supreme Federal Court examined the constitutional requirement of reasoned judicial decisions in Theme 339 of its general-repercussion jurisprudence.
Leading case: AI 791.292 QO-RG/PE.
Rapporteur: Justice Gilmar Mendes.
Judgment: 23 June 2010.
Official thesis
“O art. 93, IX,
da Constituição Federal exige
que o acórdão ou decisão
sejam fundamentados,
ainda que sucintamente,
sem determinar, contudo,
o exame pormenorizado
de cada uma das alegações
ou provas.”
English translation
“Article 93, IX, of the Federal Constitution requires that judgments or decisions state reasons, even succinctly, without, however, requiring a detailed examination of every allegation or item of evidence.”
The precedent recognizes the constitutional duty to provide judicial reasons.
It does not require an exhaustive discussion of every allegation.
At the same time, Article 489, §1, IV, of the Code of Civil Procedure requires attention to arguments capable, in principle, of defeating the conclusion adopted.
These provisions must be interpreted together, particularly when evaluating the right of defense and the adequate consideration of material legal arguments.
Official STF source: https://portal.stf.jus.br/jurisprudenciaRepercussao/tema.asp?num=339
XII. Judicial Identity, Impartiality and the CNJ Decision of 26 May 2026
On 26 May 2026, Brazil's National Council of Justice examined issues involving the organization of a specialized judicial structure in Santa Catarina.
Proceeding: PCA 0005106-93.2025.2.00.0000.
The proceeding involved questions of judicial competence, the identification of responsible adjudicators, institutional organization, judicial independence, impartiality, and the judge-of-guarantees framework.
The comparative significance of these issues concerns the traceability of judicial authority, the allocation of competence, and the ability of litigants to identify the adjudicator responsible for a judicial act.
The CNJ, by majority, rejected the challenge and maintained the validity of the judicial structure.
A dissenting position disagreed with part of the majority's reasoning.
The proceeding is relevant to the international discussion because institutional transparency and judicial impartiality are central to effective due process.
It does not establish that comparable practices occurred in the American proceedings discussed by Scott.
XIII. International Human Rights: The Right to an Independent and Impartial Tribunal
Universal Declaration of Human Rights — Article 10
Article 10 recognizes the right to a fair and public hearing before an independent and impartial tribunal.
The Declaration constitutes a foundational international human-rights instrument.
International Covenant on Civil and Political Rights — Article 14
Article 14 recognizes equality before courts and tribunals and the right to a fair and public hearing before a competent, independent and impartial tribunal established by law.
Brazil promulgated the Covenant through Decree No. 592/1992.
American Convention on Human Rights — Articles 8 and 25
Article 8 establishes judicial guarantees, including the right to proceedings before a competent, independent and impartial tribunal.
Article 25 protects the right to effective judicial protection.
Brazil promulgated the Convention through Decree No. 678/1992.
The Convention's application must be examined according to each State's treaty obligations and the applicable jurisdictional framework.
United Nations Basic Principles on the Independence of the Judiciary
The United Nations Basic Principles, adopted in 1985, provide international standards concerning the independence of the Judiciary.
Principle 2 addresses the duty to decide matters impartially, on the basis of facts and law.
This standard has direct comparative relevance to the function of courts described by Scott.
Inter-American Court of Human Rights: Apitz Barbera v. Venezuela
In Apitz Barbera et al. v. Venezuela, judgment of 5 August 2008, the Inter-American Court examined guarantees relating to judicial independence and impartiality.
The case forms part of the international jurisprudence concerning the institutional conditions necessary for fair adjudication.
XIV. Public Confidence and the Rule of Law: What the Data Reveal
Public confidence in judicial institutions is relevant to the legitimacy of constitutional government.
However, opinion surveys measure public perceptions, not judicial misconduct in individual cases.
The following indicators must be kept separate because they employ different questions, populations, methodologies and reference periods.
Figure 1 — Historical Confidence in the U.S. Supreme Court
Gallup · Percentage reporting a great deal or quite a lot of confidence · Selected historical years
Source:
Gallup, Confidence in Institutions.
https://news.gallup.com/poll/1597/confidence-institutions.aspx
View the complete historical Gallup data table
| Year | High confidence |
|---|---|
| 1973 | 45% |
| 1975 | 49% |
| 1977 | 45% |
| 1979 | 45% |
| 1981 | 46% |
| 1983 | 42% |
| 1984 | 51% |
| 1985 | 56% |
| 1986 | 54% |
| 1987 | 52% |
| 1988 | 56% |
| 1989 | 46% |
| 1990 | 47% |
| 1991 February | 48% |
| 1991 October | 39% |
| 1993 | 43% |
| 1994 | 42% |
| 1995 | 44% |
| 1996 | 45% |
| 1997 | 50% |
| 1998 | 50% |
| 1999 | 49% |
| 2000 | 47% |
| 2001 | 50% |
| 2002 | 50% |
| 2003 | 47% |
| 2004 | 46% |
| 2005 | 41% |
| 2006 | 40% |
| 2007 | 34% |
| 2008 | 32% |
| 2009 | 39% |
| 2010 | 36% |
| 2011 | 37% |
| 2012 | 37% |
| 2013 | 34% |
| 2014 | 30% |
| 2015 | 32% |
| 2016 | 36% |
| 2017 | 40% |
| 2018 | 37% |
| 2019 | 38% |
| 2020 | 40% |
| 2021 | 36% |
| 2022 | 25% |
| 2023 | 27% |
| 2024 | 30% |
| 2025 | 27% |
| 2026 | 27% |
The historical Gallup series shows a decline from 49% high confidence in 1975 to 27% in 2026, a difference of 22 percentage points.
A separate Gallup survey published on 30 September 2026 reported 46% trust in the federal judicial branch and 34% approval of the Supreme Court's job performance.
These are different survey indicators and should not be treated as interchangeable.
Figure 2 — Public Opinion of the U.S. Supreme Court
Pew Research Center · July 2026
Source:
Pew Research Center,
survey conducted 6–12 July 2026.
https://www.pewresearch.org/short-reads/2026/07/30/favorable-views-of-supreme-court-remain-near-historic-low/
The Pew Research Center reported that 45% of American adults viewed the Supreme Court favorably, while 53% held an unfavorable opinion.
The survey involved 3,554 American adults.
The favorable percentage was 20 percentage points below the 65% recorded in April 2021.
Figure 3 — Confidence in Brazil's Supreme Federal Court
Datafolha · September 2026
Source:
Datafolha, 21 September 2026.
https://datafolha.folha.uol.com.br/opiniao-e-sociedade/2026/09/falta-de-confianca-no-stf-supera-partidos-e-congresso-e-e-a-mais-alta-ja-registrada.shtml
According to Datafolha, 48% of respondents reported no confidence in Brazil's Supreme Federal Court, while 35% expressed some confidence and 14% expressed a great deal of confidence.
The percentages do not total 100% because other responses and rounding are not separately represented.
A different Datafolha measurement reported 47% negative evaluation of the performance of STF justices, 31% regular evaluation, 18% positive evaluation, and 4% without an opinion.
Institutional confidence and performance evaluation are distinct measurements.
FGV Direito SP — ICJBrasil
The Judicial Confidence Index developed by FGV Direito SP provides additional historical information.
Reported confidence in the Judiciary declined from 34% in 2013 to 24% in 2017.
These figures represent historical measurements, not a continuous series extending to 2026.
World Justice Project — Rule of Law Index 2025
In the 2025 Rule of Law Index, Brazil occupied the following positions among 143 jurisdictions:
| Indicator | Brazil's position |
|---|---|
| Overall rule of law | 78 / 143 |
| Civil justice | 77 / 143 |
| Criminal justice | 111 / 143 |
These indicators offer an international comparative perspective on the rule of law.
They do not identify individual judicial misconduct or establish that particular cases were decided unlawfully.
XV. Comparative Constitutional and International Legal Framework
| Legal question | United States | Brazil | International framework |
|---|---|---|---|
| Constitutional supremacy | Marbury; McCulloch; U.S. Constitution, Article VI | 1988 Constitution; CPC, Article 1 | Rule of law and limitations on public power |
| Notice and participation | Mullane; Mathews | Constitution, Article 5, XXXV, LIV and LV; CPC, Article 10 | ICCPR, Article 14; ACHR, Article 8 |
| Facts and evidence | Anderson v. Liberty Lobby | CPC, Articles 370, 371 and 373 | UN Basic Principles, Principle 2 |
| Judicial impartiality | Tumey; Murchison; Caperton; Williams | Constitutional due process; judicial impediment and disqualification | ICCPR, Article 14; ACHR, Article 8; Apitz Barbera |
| Reasoned decisions | Constitutional and procedural standards applicable to each context | Constitution, Article 93, IX; STF Theme 339; CPC, Article 489 | Fair-hearing and effective-remedy guarantees |
| Control of public power | Marbury; Boumediene | Separation of powers; MS 23.452/RJ | Effective judicial protection; ACHR, Article 25 |
XVI. The Question for Brazilian Lawyers, Scholars and Judges
The international debate provides an opportunity for lawyers, scholars, judges and citizens to examine the effective implementation of constitutional guarantees.
The relevant inquiry does not begin with the assumption that an entire judicial institution is corrupt.
It begins with verifiable facts.
Among the issues requiring examination are whether:
- Courts identify and examine facts according to applicable procedural rules.
- Parties receive legally adequate notice and meaningful opportunities to defend themselves.
- Judges apply the governing law and relevant constitutional provisions.
- Judicial decisions adequately address material legal arguments.
- Adjudicators remain independent and impartial.
- The identity and authority of responsible judges can be determined.
- Constitutionally established review mechanisms remain available and effective.
- Documented recurring defects indicate isolated mistakes or institutional problems requiring further investigation.
These questions can provide the foundation for the international educational webinars discussed during the meeting.
The objective should be to develop comparative legal understanding and encourage a documented, substantive discussion of constitutional adjudication.
XVII. Conclusion: Judicial Integrity and Constitutional Accountability
Scott Erik Stafne's question to Brazil raises a fundamental issue in constitutional law: whether the institutional operation of courts remains faithful to the duties assigned to them by the constitutional order.
His emphasis on impartial fact-finding, the application of existing law, and judicial independence provides a substantive starting point for comparative legal analysis.
Dr. Ronaldo Nobre's participation brought Brazilian civil and procedural law into the discussion, with particular attention to legal certainty and effective constitutional guarantees.
The independently recorded statements of Eros Grau reinforce the importance of judicial interpretation within the limits of the Constitution and the legal order.
The jurisprudence of the United States Supreme Court provides constitutional standards concerning judicial review, due process, impartiality, factual disputes and effective remedies.
Brazil's Constitution, its Code of Civil Procedure, and the jurisprudence of the Supreme Federal Court establish corresponding domestic obligations.
International human-rights law recognizes the importance of independent and impartial tribunals for the effective protection of fundamental rights.
The question raised by Scott should therefore be approached through constitutional analysis, judicial precedent, documentary evidence, and meaningful international dialogue.
Judicial authority derives its constitutional legitimacy from the lawful exercise of jurisdiction, not merely from institutional position.
Independent adjudication requires impartiality, procedural fairness, attention to the facts, and the application of the governing law.
A disagreement with a judicial outcome is not sufficient to demonstrate a systemic failure.
But documented recurring failures of constitutional safeguards may justify a broader institutional inquiry.
That is the significance of Scott Erik Stafne's question to Brazil.
XVIII. Legal Authorities and Bibliographical References
The following bibliography identifies the constitutional, statutory, jurisprudential, international, statistical and audiovisual materials relevant to the analysis.
References are presented in an ABNT-oriented format with expanded URLs.
- BRASIL. Constituição da República Federativa do Brasil de 1988. Brasília, DF: Presidência da República, 1988. Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm . Accessed: 8 Oct. 2026.
- BRASIL. Lei nº 13.105, de 16 de março de 2015. Código de Processo Civil. Brasília, DF: Presidência da República, 2015. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm . Accessed: 8 Oct. 2026.
- BRASIL. SUPREMO TRIBUNAL FEDERAL. Mandado de Segurança nº 23.452/RJ. Relator: Ministro Celso de Mello. Tribunal Pleno. Judgment: 16 Sept. 1999. Publication: 12 May 2000. Available at: https://jurisprudencia.stf.jus.br/ . Accessed: 8 Oct. 2026.
- BRASIL. SUPREMO TRIBUNAL FEDERAL. AI 791.292 QO-RG/PE. Tema 339 da Repercussão Geral. Relator: Ministro Gilmar Mendes. Judgment: 23 June 2010. Available at: https://portal.stf.jus.br/jurisprudenciaRepercussao/tema.asp?num=339 . Accessed: 8 Oct. 2026.
- BRASIL. CONSELHO NACIONAL DE JUSTIÇA. Informativo de Jurisprudência nº 8/2026. PCA 0005106-93.2025.2.00.0000. Judgment: 26 May 2026. Available at: https://atos.cnj.jus.br/files/original190955202606036a207c035ef88.pdf . Accessed: 8 Oct. 2026.
- BRASIL. CONSELHO NACIONAL DE JUSTIÇA. CNJ valida estrutura de vara contra organizações criminosas em SC. Brasília, DF: CNJ, 2026. Available at: https://www.cnj.jus.br/cnj-valida-estrutura-de-vara-contra-organizacoes-criminosas-em-sc/ . Accessed: 8 Oct. 2026.
- BRASIL. Decreto nº 592, de 6 de julho de 1992. Promulgates the International Covenant on Civil and Political Rights. Available at: https://www.planalto.gov.br/ccivil_03/decreto/1990-1994/d0592.htm . Accessed: 8 Oct. 2026.
- BRASIL. Decreto nº 678, de 6 de novembro de 1992. Promulgates the American Convention on Human Rights. Available at: https://www.planalto.gov.br/ccivil_03/decreto/d0678.htm . Accessed: 8 Oct. 2026.
- SUPREME COURT OF THE UNITED STATES. The Court and Constitutional Interpretation. Washington, DC: Supreme Court. Available at: https://www.supremecourt.gov/about/constitutional.aspx . Accessed: 8 Oct. 2026.
- UNITED STATES CONGRESS. Constitution Annotated: Article VI, Clause 2. Washington, DC: United States Congress. Available at: https://constitution.congress.gov/browse/article-6/clause-2/ . Accessed: 8 Oct. 2026.
- UNITED STATES. SUPREME COURT. Marbury v. Madison. 5 U.S. (1 Cranch) 137 (1803). Available at: https://supreme.justia.com/cases/federal/us/5/137/ . Accessed: 8 Oct. 2026.
- UNITED STATES. SUPREME COURT. McCulloch v. Maryland. 17 U.S. (4 Wheat.) 316 (1819). Available at: https://supreme.justia.com/cases/federal/us/17/316/ . Accessed: 8 Oct. 2026.
- UNITED STATES. SUPREME COURT. Tumey v. Ohio. 273 U.S. 510 (1927). Available at: https://supreme.justia.com/cases/federal/us/273/510/ . Accessed: 8 Oct. 2026.
- UNITED STATES. SUPREME COURT. Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306 (1950). Available at: https://supreme.justia.com/cases/federal/us/339/306/ . Accessed: 8 Oct. 2026.
- UNITED STATES. SUPREME COURT. In re Murchison. 349 U.S. 133 (1955). Available at: https://supreme.justia.com/cases/federal/us/349/133/ . Accessed: 8 Oct. 2026.
- UNITED STATES. SUPREME COURT. Mathews v. Eldridge. 424 U.S. 319 (1976). Available at: https://supreme.justia.com/cases/federal/us/424/319/ . Accessed: 8 Oct. 2026.
- UNITED STATES. SUPREME COURT. Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986). Available at: https://www.law.cornell.edu/supremecourt/text/477/242 . Accessed: 8 Oct. 2026.
- UNITED STATES. SUPREME COURT. Boumediene v. Bush. 553 U.S. 723 (2008). Available at: https://supreme.justia.com/cases/federal/us/553/723/ . Accessed: 8 Oct. 2026.
- UNITED STATES. SUPREME COURT. Caperton v. A. T. Massey Coal Co. 556 U.S. 868 (2009). Available at: https://supreme.justia.com/cases/federal/us/556/868/ . Accessed: 8 Oct. 2026.
- UNITED STATES. SUPREME COURT. Williams v. Pennsylvania. 579 U.S. 1 (2016). Available at: https://supreme.justia.com/cases/federal/us/579/15-5040/ . Accessed: 8 Oct. 2026.
- GALLUP. Confidence in Institutions: Historical Trends. Washington, DC: Gallup. Available at: https://news.gallup.com/poll/1597/confidence-institutions.aspx . Accessed: 8 Oct. 2026.
- GALLUP. JONES, Jeffrey M. U.S. Supreme Court Begins Term With Historically Low Ratings. 30 Sept. 2026. Available at: https://news.gallup.com/poll/715022/supreme-court-begins-term-historically-low-ratings.aspx . Accessed: 8 Oct. 2026.
- PEW RESEARCH CENTER. VAN GREEN, Ted. Favorable Views of Supreme Court Remain Near Historic Low. 30 July 2026. Available at: https://www.pewresearch.org/short-reads/2026/07/30/favorable-views-of-supreme-court-remain-near-historic-low/ . Accessed: 8 Oct. 2026.
- DATAFOLHA. Falta de confiança no STF supera Partidos e Congresso e é a mais alta já registrada. 21 Sept. 2026. Available at: https://datafolha.folha.uol.com.br/opiniao-e-sociedade/2026/09/falta-de-confianca-no-stf-supera-partidos-e-congresso-e-e-a-mais-alta-ja-registrada.shtml . Accessed: 8 Oct. 2026.
- DATAFOLHA. Recorde, avaliação negativa do STF atinge 47%. 28 Sept. 2026. Available at: https://datafolha.folha.uol.com.br/opiniao-e-sociedade/2026/09/recorde-avaliacao-negativa-do-stf-atinge-47.shtml . Accessed: 8 Oct. 2026.
- FUNDAÇÃO GETULIO VARGAS. DIREITO SP. Relatório ICJBrasil: primeiro semestre de 2017. São Paulo: FGV Direito SP, 2017. Available at: https://direitosp.fgv.br/sites/default/files/backup-d6/relatorio_icj_1sem2017.pdf . Accessed: 8 Oct. 2026.
- FUNDAÇÃO GETULIO VARGAS. DIREITO SP. ICJBrasil detecta queda da confiança da população em quase todas as instituições brasileiras em 2017. São Paulo: FGV Direito SP, 2017. Available at: https://direitosp.fgv.br/noticia/icjbrasil-detecta-queda-confianca-populacao-quase-todas-instituicoes-brasileiras-2017 . Accessed: 8 Oct. 2026.
- WORLD JUSTICE PROJECT. WJP Rule of Law Index 2025: Brazil. Washington, DC: World Justice Project, 2025. Available at: https://worldjusticeproject.org/rule-of-law-index/country/Brazil . Accessed: 8 Oct. 2026.
- UNITED NATIONS. Universal Declaration of Human Rights. Paris: United Nations, 1948. Available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights . Accessed: 8 Oct. 2026.
- UNITED NATIONS. Basic Principles on the Independence of the Judiciary. Adopted in 1985. Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-independence-judiciary
- CORTE INTERAMERICANA DE DERECHOS HUMANOS. Caso Apitz Barbera y otros vs. Venezuela. Sentencia de 5 de agosto de 2008. Serie C, no. 182. Available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_182_esp.pdf
- CORTE INTERAMERICANA DE DERECHOS HUMANOS. Caso Apitz Barbera y otros vs. Venezuela: ficha técnica. San José: Corte IDH, 2008. Available at: https://www.corteidh.or.cr/ver_ficha_tecnica.cfm?lang=pt&nId_Ficha=295 . Accessed: 8 Oct. 2026.
- EROS GRAU. STF tem que cumprir e fazer cumprir a Constituição. YouTube Shorts. Audiovisual excerpt. Publication date not ascertained. Available at: https://www.youtube.com/shorts/-mGh9A3UrfE . Accessed: 8 Oct. 2026.
- EROS GRAU. Juiz está lá para aplicar a Constituição. YouTube Shorts. Audiovisual excerpt. Publication date not ascertained. Available at: https://www.youtube.com/shorts/eUDxE04xbLQ . Accessed: 8 Oct. 2026.
- MINDD–COTG. International Zoom Discussion: Scott Erik Stafne, Dr. Ronaldo Nobre and participants. Audiovisual meeting and time-coded transcripts. 4 October 2026. Unpublished documentary record made available to the editorial team. No public URL.
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