Supreme Court faces uncertain lineup in justice probe
Brazil's Supreme Court could decide the case with as few as seven justices taking part
Gustavo Moreno/STF
The upcoming Brazilian Supreme Court vote on whether to launch a formal investigation into Justice Alexandre de Moraes remains clouded by uncertainty, according to court insiders. Key unknowns include whether Moraes himself, Justice André Mendonça, and Justice Dias Toffoli will participate in the ruling.
The session, scheduled for Tuesday (Sept. 15), could proceed with a full bench of ten justices or as few as seven. Tensions ahead of the hearing are running high over unrestricted access to extracted mobile phone data from former banker Daniel Vorcaro, as well as mounting pressure to postpone the session.
The full court is set to evaluate a Federal Police report highlighting text messages sent by Vorcaro—the former controlling shareholder of Banco Master—to a phone number linked to Justice Moraes. The messages suggest Vorcaro sought non-public details regarding a sealed investigation that led to his initial arrest last November, attempting to influence proceedings and soliciting protection from police and prosecutors. The public release of the document by Mendonça has plunged the tribunal into an unprecedented institutional crisis.
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Behind the scenes, some justices argue that Moraes should be allowed to vote, particularly if Mendonça—who holds a direct interest in the dispute—manifests his position. However, legal experts inside and outside the court view the prospect of a justice voting on a matter concerning his own conduct as highly anomalous, with one justice labeling the idea "completely unreasonable." Another court observer quipped that sound judgment has hardly been the Federal Supreme Court’s defining feature in recent weeks.
Toffoli recused himself from all Banco Master-related proceedings on March 11. His decision followed his step-down as rapporteur after corporate links surfaced between his circle and an investment fund tied to Fabiano Zettel, Vorcaro’s brother-in-law. Should Toffoli opt to vote, it would mark his first involvement in a Master-related ruling since declaring his conflict of interest.
Mendonça’s participation is similarly in question. Having been stripped of his reporting role over the matter, several colleagues are actively urging him to formally disqualify himself to preserve procedural neutrality.
Evidence tug-of-war
A bitter dispute over the raw data extracted from Vorcaro’s mobile phone erupted late last week. Justices Cristiano Zanin and Mendonça clashed over access, leaving Chief Justice Edson Fachin to act as referee.
Zanin requested full access to the digital evidence to refine the court’s analysis of the police report. Mendonça resisted, initially claiming the data was held exclusively by law enforcement, and later warning Fachin that a full disclosure would spark market and political turbulence while compromising ongoing probes into Banco Master.
In response, Zanin issued a directive ordering police to hand over the files, a demand quickly mirrored by senior Justice Gilmar Mendes.
Procedural maneuvering
Uncertainty also stems from the absence of a defined procedural framework for the session. Fachin is expected to circulate guidelines to his colleagues, with allies noting he is still finalizing the structure of the hearing, which will be broadcast live per court protocol.
Over the weekend, Fachin reassigned the case from Mendonça to his own docket. As the new reporting justice, the Chief Justice will open the session by reading the case summary and casting the initial vote.
A faction aligned with Moraes is contemplating a stay request (pedido de vista) to halt proceedings. They argue the matter should be combined with a separate petition filed by Moraes, which calls for an abuse-of-authority investigation into Mendonça’s handling of both the Banco Master case and inquiries into Brazil's Social Security Institute (INSS).
Moraes claims Mendonça acted on an anonymous police report to shield political allies. While Fachin initially rejected merging the cases, he subsequently transferred both to the Chief Justice's office and scheduled the probe into Mendonça for September 23.
A procedural stay could freeze the vote for up to 90 days, delaying a resolution until December at the earliest. While a stay pauses the final outcome, it does not prevent justices from voluntarily placing their votes on the record.
Should a stay be called, opponents may introduce a point of order seeking Moraes’s temporary suspension from the bench. Legal sources consider this outcome unlikely: under the Organic Law of the National Judiciary, bench suspensions require a two-thirds supermajority (seven votes), whereas authorizing an investigation requires only a simple majority. If only seven justices take part, four votes would suffice to launch an inquiry.
Vote counts and delay tactics
Support for opening an investigation is firmly expected from Justices Luiz Fux and Kassio Nunes Marques. Observers believe Fachin and Justice Cármen Lúcia may join them to project institutional accountability and contain the fallout.
Moraes retains backing from Justices Flávio Dino, Mendes, and Zanin. Under current projections, the odds lean slightly toward approving the investigation. Toffoli remains a wild card; historically allied with Moraes and Mendes, he has built closer ties with Mendonça in recent months.
Meanwhile, pressure is mounting on Fachin to delay the hearing altogether. Several justices contend that the massive volume of unsealed Banco Master documents makes a thorough review impossible before Tuesday.
However, the Chief Justice has signaled he intends to proceed as planned, resisting a flurry of motions filed since Friday by Mendes, Zanin, and Moraes seeking document unsealings, evidentiary access, and joined sessions.
