Despite the negative aspects of an hegemonic power, the United States of America exercise a benefic and effective influence in the internal Law of the international community due to the excellence of some decisions issued by their Supreme Court concerning public freedom and human rights.

These positive effects have reflected themselves in people’s lives in many countries. Even in Brazil, some parameters, which were stated during the so called Warren Court (1953-1969), have produced some outcomes on practices and, after that, on positive law. This period of time was the apogee of the Supreme Court in decisions promoting civil rights.

Therefore, every person who is concerned about judicial protection of those rights has been apprehensive toward the North-American presidential election scenario. The perspective of an eventual permanence of a Republican Government was terrible. The profile of the new President is relevant, because it is his duty to nominate the Supreme Court Judges, with the approval of the Senate.

Since 1869, the Supreme Court has had the current composition, which are nine (9) lifelong judges, one of whom is appointed as the Chief Justice, who is assigned with the task of chairing the court. In other words, the political bias of the president is crucial in choosing the members of the Supreme Court. That is so because the North-Americans have the merit of assuming the partisanship of choices for the court. Therefore, the judges are from one party or the other according to the source of his nomination. In this aspect they are far removed from the hypocrisy of certain down Rio Grande republics.

There is an aphorism of convenience, applicant amongst retrograde Countries, that the improbus administrator is worth a lot. This proverb states that “the institution should not be confused with its members”. False. The institution is what its members are. At least, the institution reflects the majority of its members. Notwithstanding an inexorable truth: a rotten orange can contaminate the whole basket! That is why being careful when selecting the members of institutions like the Supreme Court is essential.

Due to nominations made by extremists of the right wing, today in the Supreme Court, four judges, including the current Chief Justice, in an oblique way, supported the torture of prisoners in the camp of prisoners of Guantanamo Bay, Cuba. For more ionformation: Boumediene vs. Bush, U.S. President, Case number 06-1195, decided in 12.VI.2008. In fact, the right to habeas corpus of a prisoner was being discussed. However, the possibility of torturing the prisoner is the reason behind this attempt to prevent the granting of the habeas corpus. In fact, even a certain type of torture was confessed by U.S. authorities, the so-called water boarding (simulated drowning).

One must examine each of the judges of the Supreme Court, because the torture case above mentioned involves a threshold situation. In this case, the threshold situation, two conservative judges whose ethical conduct does not make any concessions to ideology, have joined the other three, who are considered liberals, defeating the extremists. These conservative judges are Judge Anthony M. Kennedy, appointed by Ronald Reagan in September 1988, and Judge David H. Souter, appointed by George Bush, senior, in October 1990. The Liberals are Judge John Paul Stevens, appointed by Gerald Ford in December 1975, Judge Ruth Bader Ginsburg, appointed by Bill Clinton in August 1993, and Judge Stephen G. Breyer, also appointed by Clinton in August 1994.

However, outside that threshold situation, the two conservative Judges have joined those right wing extremist Judges, isolating those so-called liberals. And recently they did so, in a major case. A especially representative case for the protection of the environment in the mistreated planet Earth. The decision, disregarding the ecological cause, has honored the big business. For more information: Exxon Shipping Co. vs. Grant Baker, Case number 7-219; decided in 25.VI.2008. The decision, by 6 to 3, changed the judgment from the Court of Appeal who had condemned Exxon to the payment of a heavy fine in compensation for the damages resulting from oil spills on the coast of Alaska, caused by their container ship, Exxon Valdez, whose captain was drunk when the accident occurred.

Another relevant case in which the three liberal Judges have also been isolated was that on which there was a disagreement on the recount of votes in the state of Florida in the presidential election in 2000. For more information: George W. Bush vs. Albert Gore, Jr., Case number 00-949; decided in 12.XII.2000. At that time, the Chief Justice, Judge Rehnquist, wrote the Court’s opinion in which, by 6 to 3, the decision prevented the recounting of the votes, which could reverse the election result against the Republican candidate. The Republican majority in Court favored their Party’s convenience disregarding the search for the truth. In direct consequence of this Supreme Court decision, the result was the legacy of eight years of Bush administration with all the disastrous consequences for mankind. Moreover, it was also harmful to the Law, quoting the words of the losing vote issued by Judge Stevens. He stated that, although we may never know for sure the identity of the real winner of that presidential election, the identity of the loser is perfectly clear. The loser is the nation’s faith in the judge as an impartial guardian of the rule of law.

In short, each judge is critical. The next president will have the opportunity to nominate one or two new judges. Candidates to replacement are precisely amongst those who decide with autonomy, accordingly to the rule of law. Indeed, Judge Stevens is eighty-eight (88) years-old, and Judge Ginsburg, who is seventy-five years-old (75), seems to be the bearer of serious illness. Moreover, corroborating the view concerning the importance of the link between the presidential election and the Supreme Court on the day of election, on November 4 last, a national survey was performed in which 53% of those more than 120 million voters said that the “Supreme Court factor” was decisive in their votes, according to http://politicalticker.blogs.cnn.com/2008/11/05/exit-polls-the-supreme-court/.

Luiz Baptista Pereira de Almeida Filho - partner and associate of Do Val, Pereira de Almeida, Sitzer e Gregolin, attorneys.

Contact: doval@dovaladvogados.com.br

Issue in November, 2008