Alexandre de Moraes means well, which is precisely why he’s so dangerous.

Moraes, a judge on Brazil’s Federal Supreme Court tasked with investigating the far-right’s attempt to undermine Brazil’s democracy following the loss of Jair Bolsonaro to Luiz Inácio Lula da Silva recently decreed a ban on Xand fines on individuals using VPNs to access it.  An expanded panel of the court upheld Moraes’s decision on Monday, continuing a tradition of rubber-stamping Moraes’s moves. The X ban, imposed for a failure to comply with various orders banning accounts, is the latest of a number of unilateral measures attacking freedom of expression and due process taken by Moraes, whose ever expanding investigation has seen him become the most powerful man in Brazil.

Some online pundits celebrated the X ban.  It is easy to see why. Elon Musk is not a very sympathetic figure. Nor are the Brazilian far-right trolls who spread misinformation on that platform in defence of the venal and crude Bolsonaro. X, additionally, did defy orders to close various accounts, embodying the tech company attitude that laws do not apply to Silicon Valley. Moraes, by contrast, is, from the accounts we have of him, an urbane and friendly man, who rose from a sterling academic beginning to success as a prosecutor, politician (of the centre-right), and in private practice. He also genuinely believes in preserving Brazilian democracy, persisting in his work even as it forces his family to live under 24-hour police protection. Other than his shaved head, which gives him a vaguely villainous look, he is a ready-made protagonist for the cause of democracy.

The problem is that Moraes too sees himself as the protagonist, the hero who has the sole responsibility to save Brazil. As head of security in the state of Sào Paulo, he took a hard line on crime, directing a police force of more than 100,000 officers to crack down on crime by sometimes brutal means, without much regard for civil liberties. By the time he was federal minister of justice in 2016, he wanted to take on crime first-hand, infamously going to Paraguay to personally destroy illegal cannabis plants with a machete in a bizarre stunt. Now, at the Federal Supreme Court, Moraes has taken on the task of singlehandedly preserving Brazilian democracy, at any price.

The investigation into the Bolsonarist threat was opened by the Federal Supreme Court of its own initiative, which had appointed itself to lead the matter, rather than the government or police. Moraes was put in charge of it, and takes all the decisions involved, although these are periodically validated by the expanded court. Since his appointment, Moraes has raided whomever he likes, removed an elected governor for a temporary suspension, summarily ordered blocks and bans on various internet accounts, all without clear legal authority. There are few routes of appeal from his orders, and in the cases where they are examined by a wider panel of the court, the justices have proved uninterested in restraining the power of their own institution. 

A judiciary which operates beyond its legal authority, which abuses its power, is as dangerous as an executive which does so

Brazil already had a problem with runaway judges. The magistrate investigating the country’s massive corruption scandal, Sergio Moro, got drunk on his own power and ordered illegal wiretapping, which sent Lula to prison. (The verdict was eventually overturned, a freed Lula was elected again to the presidency, and Moro is now senator for a right-wing party.) The ability of the courts to take action suo moto only makes the problem more acute — as it has in India, where the Supreme Court has a checkered history of granting itself more and more power, with predictable consequences for individual rights. A judiciary which operates beyond its legal authority, which abuses its power, is as dangerous as an executive which does so.

Those who celebrate the X ban tend to follow a syllogism which stems from valid premises. Bolsonaro and his supporters are indeed menaces to democracy, if disorganised and incompetent ones. Tech giants are indeed too powerful and do flout the law too often. Yet, it does not follow from this that every action which takes on Bolsonarists or tech giants is right and good. As a single man accrues more and more power, and is constrained less and less by law, dangerous precedents are set. The fine on users of VPNs, essentially a new criminal offence applicable to every Brazilian, is indicative of how far Moraes’s power goes. 

Nor is there any reason to believe that the court will, once this investigation concludes, voluntarily relinquish the powers it took in a state of emergency and, to paraphrase Brazilian constitutional law professor Conrado Hübner Mendes, return the genie to its lamp. Temporary urgent measures have a nasty habit of becoming permanent. Moraes’s actions now may be against dislikeable targets who attract little sympathy, but runaway judicial powers could be just as easily used (again) to attack politicians of the left. When the protections of procedure are eliminated, everyone is left vulnerable.

Moraes really does believe in Brazilian democracy, with a firm conviction forged by growing up in the shadow of the military dictatorship. It is because he wants so much to save his country that he is willing to go so far. This is a bad sign for Brazil. If Moraes were power hungry, he would have long since been sated by the authority he has accrued. Instead, Moraes, who was reluctant to even accept his appointment to the Federal Supreme Court, will keep going farther and farther, trampling over any individual niceties of procedure to stamp out the ever-expanding menaces he perceives to endanger Brazil. The ironic result of this well-intentioned crusade is that Moraes may do more damage to Brazil’s constitutional system than Bolsonaro. This is not something to be celebrated, no matter how much one may dislike Elon Musk.