JUDICIALIZATION, JUDICIAL ACTIVISM AND DECISIONISM: CAUSES, CONSEQUENCES AND MITIGATION OF EXCESSES

Abstract

In Brazil, in particular, debates about the role of the Judiciary have intensified. Part of the specialized literature argues for a more active Judiciary, while another part defends judicial restraint. Against this backdrop, the general objective of this paper is to analyze the Judiciary’s political and social decisions considering specialized literature and jurisprudence. The specific objectives are to (i) contextualize the historical and theoretical conceptions of judicialization and judicial activism and (ii) examine, with particular emphasis, the jurisprudence of the Federal Supreme Court (Supremo Tribunal Federal, STF) on the subject. To meet these objectives, the study adopts qualitative bibliographic research grounded in diverse currents of legal thought and in the normative framework of the 1988 Federal Constitution. This approach enabled the examination of STF rulings, the identification of manifestations of judicial activism, and the delineation of the principal jurisprudential understandings. As a final observation, under the judicial review model, the supremacy of the Judiciary appears inevitable. Nevertheless, new constitutional experiments based on alternative institutional arrangements have fostered greater harmony among the branches of government and between constitutionalism and democracy. This occurs because the countermajoritarian stance adopted by the Judiciary, often framed as the “negative legislator”, proves incompatible with the inefficiency of the Executive and Legislative branches, which frequently disregard the interests of a pluralistic and fluid society.