JUDICIAL ACTIVITY: CONSTRUCTION AND VARIATIONS OF A CRITICAL CONCEPT OF THE EXPANSION OF JUDICIAL POWER
Keywords:
Judicial Activism, Supreme Court of the United States, Democracy, Separation PowersAbstract
This article intends to critically analyze judicial activism, seeking to delimit its conceptualization and going beyond its frequent imprecise and rhetorical use, by identifying the different contemporary phenomena related to the expansion of the Judiciary. For this, the qualitative bibliographic research starts from the American doctrinal debate on the subject, covering the broad theoretical path, from Arthur Schlesinger to Cass Sunstein, in comparison with the Brazilian doctrine. The theoretical contributions and contrasts on the jurisprudential experiences identified as activists allow differentiating the judicialization of politics from the politicization of justice, phenomena that cannot be confused, leading to the conclusion that the concept of judicial activism is necessarily multifaceted, and must be evaluated contextually, in combination with judicial self-restraint decision-making options and strategies.
