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Clerk of the US Supreme Court delivers speech at the Federal Supreme Court

Tuesday, August 22, 2017

The Brazilian Federal Supreme Court received on Tuesday (22) the Clerk of the Supreme Court of the United States, Scott Harris, in a lecture that had the theme "Judicial System - Discussion of Recent Cases". He has held the position since 2013, but has served on the Supreme Court since 2002 as a legal counsel.

The panel of the lecture was chaired by Justice Edson Fachin, and in addition to the speaker, was composed by the US ambassador to Brazil, Peter McKinley, the Vice President of the Superior Court of Justice, Minister Humberto Martins, the Minister of State for Justice , Torquato Jardim, by the Attorney General of the Union, Grace Mendonça, and by the Director General of the STF, Eduardo Toledo. Presenting him to the audience, Ambassador Peter McKinley said that Harris brings a unique combination: he is a great connoisseur of both the lawsuits and the justice system.

The US Supreme Court's Clerk dedicated the first part of the speech to explain practical aspects of the Supreme Court - criteria of appointment of its members, dynamics of judgments, among others. There are nine justices, appointed by the President of the Republic and confirmed by the Senate. Of the current composition, eight justices came from the judiciary and one was dean of a law school.

Although the US Constitution does not provide for qualification or number of members, Harris affirms that indications always come under strong scrutiny of public opinion, and that high legal qualification is indispensable. Because positions are lifelong and there is no compulsory retirement, Justices can act for decades, which increases responsibility for choices. "The nominees will be there for 20 or 30 years, and there is no way to predict the issues that will reach the court so far in advance", he noted, citing as an example the recent case of same-sex marriage. "When most of the current members were nominated, that theme was not even on the radar yet”, he said.

Discretionary power

One of the aspects in which the US Supreme Court differs significantly from the STF is its discretion, that is, the choice over which cases will be examined. As the court does not judge appeals, cases rise to it through the so-called certiorari , petitions for consideration of a decision of lower instances.

These requests will be examined by Justices in a joint effort at a particular time of year. According to Harris, about 150 petitions are filed weekly, and only 1% of them will be admitted.The rejection of a petition does not need to be substantiated and has no value as a precedent, since it does not reflect any judgment on the decision of the lower court.

When the case is admitted, there is a new round of analysis, and the merit phase takes from three to four months, with allegations from the parties. Here, too, there is a difference in relation to the dynamics of the STF: the Justices actively participate in these debates, coming up with questions that highlight certain perspectives. "In a way, they talk to each other through the questions they ask the attorneys," Harris said.


Last year's list of judgments, according to Harris, did not have much social impact. This year, however, brings some controversial issues that should promote much discussion.

In October, the Supreme Court is expected to hear the parties in order to rule on the decree of US President Donald Trump , which forbids Muslims and refugees from entering the country. The case of Gill x Whitford was also admitted, which deals with the redistricting of Wisconsin constituencies, supposedly favoring the Republican Party, which won the first election after the change.

Another case of impact is the Masterpiece Cakeshop, Colorado fine bakery that refused to make the wedding cake ordered by a homossexual couple, calling upon religious reasons. The lawsuit involves the discussion of the right to free expression and religious freedom, guaranteed by the First Amendment of the US Constitution.


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