How do ideas about democratic backsliding reshape judicial reasoning? This article develops a mid-range theory through the Brazilian Supreme Court’s (STF) doctrinally heterodox rulings against President Jair Bolsonaro’s restructuring of participatory councils—administrative bodies whose restructuring posed no direct threat to the Court itself. We argue that the STF’s adoption of backsliding ideas was a necessary condition: once justices understood democracy as vulnerable to cumulative reforms rather than only to coups, litigants’ arguments framing the council changes as democratic harms became newly resonant, enabling the Court to recognize implied constitutional limits it had previously rejected. Process tracing shows that alternative explanations, including judicial self-interest, are not sufficient to account for the rulings. The theory illuminates both the potential and the risk of backsliding ideas in legal reasoning: they can enable courts to defend democracy, but also create pressure to extend democratic harm framings beyond prototypical cases, potentially obstructing legitimate reforms.
Castro et al. (Tue,) studied this question.