JURISTOCRACY AND JUDICIAL ACTIVISM IN THEBRAZILIAN FEDERAL SUPREME COURT

Abstract

Hirschl end Kerner, respectively, understand juristocracy and judicial activism are expressions of the empowerment of the Judiciary in contemporary democracies. Contrary to the thesis that the Judiciary has usurped the power of representative bodies, they recognize that both in the juristocracy and in judicial activism, there is a deliberate transfer of power operated by the traditional holders of political power to the judicial elites, as a strategic way for the defense of their own preferences. However, while in the juristocracy's legal regime, the traditional elites, both political and economic, transfer power to the courts because they perceive the judicial elite as a better guardian of their interests against advances of elected popular governments, the Brazilian legal activism would be the result of an alliance between the President Lula da Silva and the judicial elites, to promote the new governmental regime. In the article, we start with a bibliographic study to support exploratory research on a set of notorious cases decided by the Supreme Court during the two terms of Lula da Silva, and the first term of Dilma Rousseff, to check the eventual alignment of the Supreme Court elites and/or the presidency of the Republic. We conclude that in matters of social policies and fundamental rights, there was deference by the Supreme Federal Court to governmental policies, which would confirm judicial activism. However, in matters of political reform and governance, the Supreme Federal Court used the prerogative to utter the last word, even when it clashed with the majority interests expressed in the laws, leaning towards the juristocracy.