Strategic behavior of the Brazilian Supreme Court on issues of government concern: judicial activism or prudence?

• Autor(a) principal: Lunardi, Fabrício Castagna
• Data de Publicação: 2021
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Brasileira de Estudos Políticos (Online)
• Texto Completo: https://pos.direito.ufmg.br/rbep/index.php/rbep/article/view/734
• topic: Supremo Tribunal Federal. Comportamento estratégico. Direitos fundamentais. Conflitos políticos. Ativismo judicial.; Brazilian Supreme Court. Strategic behavior. Human rights. Political conflicts. Judicial activism.

BACKGROUND: Several studies have been conducted worldwide on judicial behavior models and the performance of Constitutional Courts in matters of interest to the government, especially in the arbitration of political conflicts and in the implementation of fundamental rights, but in Brazil, comparatively, there is a lack of a critical-reflexive, theoretical and empirical investigation on the effective performance of the STF in matters of interest to the government, which considers the models of judicial behavior, comparative analysis with other justice systems and empirical research on the subject. OBJECTIVE: This paper aims to investigate the effective role of the STF on issues of interest to the government in the period from 1985 (which marks the redemocratization) until 2018 (year of the last presidential election), especially in the implementation of fundamental rights and in the arbitration of political conflicts, considering the models of judicial behavior, comparative analyses with other justice systems and empirical research on the subject. MATERIALS AND METHODS: To achieve its aims, the research is developed from a critical-methodological line and with qualitative research, supported by political theories and comparative analysis, beyond purely normative issues, seeking to analyze the problems mainly from the political-institutional and behavioral point of view, considering the pattern of action of the Brazilian Constitutional Court. RESULTS: The research found that the Brazilian Constitutional Court usually acts with prudence, that is, it is very cautious when it comes to issues of governmental interest. CONCLUSIONS: It can be concluded that the Court has a shy performance in the protection of fundamental rights, at least in quantitative terms, even when compared to other Latin American countries. In the arbitration of political conflicts, the STF usually decides by allocating power to the stronger body or entity, unless such a measure is manifestly unconstitutional.