The Senate's rejection of Jorge Messias's nomination for a seat on the Supreme Federal Court (STF) has prolonged the vacancy in the Court and keeps it operating with only ten justices. The position has remained open since October 2025, when then-Justice Luís Roberto Barroso brought forward his retirement.
With the incomplete composition of the panel, the risk of judgments ending in a tie, without a definitive conclusion, increases. Since Barroso's departure, at least 20 cases have had their analyses interrupted while awaiting the appointment of a new member to break ties in the votes.
The lack of a defined position for the vacancy is generating concern within the Supreme Court itself, especially in cases of high political and institutional sensitivity.
Currently, ministers are privately assessing that the delay in reconstituting the Court could amplify episodes of deadlock in strategic decisions for the country.
Election in Rio could be affected by tie in Supreme Court.
Among the most impacted cases is the trial discussing the format of the election for the interim governorship in Rio de Janeiro. The case will determine whether the new governor will be chosen through indirect election, via the Legislative Assembly, or by direct popular vote.
Currently, the score is 4 votes to 1 in favor of the argument that the Legislative Assembly should define the successor, thus consolidating an indirect election.
Ministers André Mendonça, Nunes Marques, Cármen Lúcia, and Luiz Fux voted in this direction. The case's rapporteur, Cristiano Zanin, dissented, advocating for direct elections.
Gilmar Mendes, Alexandre de Moraes, and Flávio Dino have already signaled a tendency to side with Zanin, which could bring the score to 4-4.
Sources within the court believe that Dias Toffoli is likely to align himself with the rapporteur, while the Court's president, Edson Fachin, may side with the dissenting opinion, which would lead to a 5-5 tie, a scenario that would create a deadlock regarding the outcome of the case.
The impacts are already affecting criminal trials in the panels.
The effects of the vacancy are already being felt in the Supreme Court panels, which are primarily responsible for criminal cases. In these smaller panels, composed of five justices, the absence of one member further increases the possibility of a tie.
In criminal cases, ties benefit the defendant. This is what recently occurred in a trial involving Pastor Silas Malafaia, who became a defendant for defamation after making statements against the top brass of the Armed Forces.
The complaint also included an accusation of slander, but there was disagreement among the justices. Because the vote was tied, the interpretation most favorable to the defendant prevailed, restricting the action only to the alleged crime of defamation.
A similar situation occurred with Congressman Gustavo Gayer (PL-GO), who became a defendant for defamation against President Luiz Inácio Lula da Silva, but escaped the accusation of slander for the same reason.
Experts warn that this scenario could encourage legal strategies based precisely on the possibility of a tie in criminal trials.
Other relevant processes are awaiting definition.
Besides the case regarding the election in Rio, other issues await a tie-breaker in the Supreme Court. Among them are lawsuits concerning the distribution of oil and gas royalties, a matter with a direct impact on the revenue of states and municipalities.
Also pending are rulings on the national registry of those convicted of sex crimes, mandatory retirement for civil servants at age 75, and rules for administrative dismissal after criminal acquittal due to lack of evidence.
Another case under review discusses the validity of laws that prevent the hiring of individuals convicted of femicide and domestic violence in the public sector.
According to Álvaro Jorge, a professor at FGV Direito Rio, the vacancy does not institutionally paralyze the Supreme Court, since the Constitution does not require 11 justices for its regular functioning.
Nevertheless, he highlights the significant operational impact.
"The absence of a minister increases the chance of a tie, especially in criminal cases, and this can significantly alter the outcomes of trials," the expert stated.
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