The Decision-making Process of the Brazilian Federal Supreme Court: enhancing the "eleven islands" criticism

• Autor(a) principal: Klafke, Guilherme Forma
• Data de Publicação: 2014
• Outros Autores: Pretzel, Bruna Romano
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista de Estudos Empíricos em Direito
• Texto Completo: https://reedrevista.org/reed/article/view/8
• topic: Supremo Tribunal Federal; Processo decisório; Razões de decidir.; Brazilian Federal Supreme Court; Decision-making process; Ratio decidendi

The “eleven islands” metaphor is commonly used to criticize the decision-making process of the Brazilian Federal Supreme Court (STF). This article explores that criticism. It seeks to explain it from the perspective of the presentation of the court’s opinion. We aim to present empirical elements that could enhance or even assist in the reformulation of the “eleven islands” diagnosis. We assume that opinions of STF judges which are merely stated on the records - that is, opinions that are not attached to the final document - have a neutral argumentative force. Our hypothesis is that the reasoning of the court’s decisions may be concentrated on one or a few opinions or dispersed among several opinions. This characterizes the court’s decision-making process as a flexible model for presenting its arguments: it sometimes approaches an institutional opinion model and sometimes an individual opinion model. The data presented here demonstrates that a significant number of the court’s decisions in an “abstract judicial review” have an easily identifiable ratio decidendi, which frequently coincides with the opinion of the judge who delivers the first opinion (“relator”). Therefore, the “eleven islands” criticism has to be rethought, at least from the perspective of the presentation of the court’s opinions. The article then proposes the following questions to be considered: what makes STF judges avoid attaching their opinions to the final document of each case, leading to the concentration of the ratio decidendi in few opinions? Is this phenomenon caused by a tendency among the judges or, on the contrary, does it only reflect an excessively individualistic behavioral pattern?