THE DEMOCRATIC DILEMMA: THE COUNTER-MAJORITARIAN ROLE OF THE SUPREME COURT AND ITS LEGITIMACY IN OVERCOMING LEGISLATIVE OMISSIONS

Abstract

This research problematizes the counter-majoritarian role of the Supreme Court and its legitimacy in overcoming legislative omissions to ensure the fundamental rights of minority groups. Our main objective was to analyze how judicial activism can fill the normative gap left by the legislator and promote social justice. We use a qualitative approach based on bibliographic research and case studies, investigating emblematic decisions that address topics such as homophobia, transphobia and racial injury. The results indicate that the intervention of the Supreme Court is essential for the protection of constitutional rights and for the promotion of equality in contexts of legislative omissions, even in the face of criticism related to the separation of powers. We conclude that judicial activism is a legitimate and necessary response to correct legislative failures and enforce fundamental rights, contributing to the consolidation of a Democratic Rule of Law. This research reinforces that the performance of the Federal Supreme Court, based on the defense of the principles of equality and dignity, is a fundamental instrument for social transformation.