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Still within the realm of interpreting the norms of the 1988 Federal Constitution , we discussed its methods and some principles of constitutional hermeneutics.
We even reflected on the constitutionalization of Private Law, and how Brazilian Civil Procedure should be guided by constitutional norms (and interpretation).
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Finally, we will examine a practical case of the Brazilian Supreme Court's interpretation of the concept of family , equating same-sex unions with heterosexual unions.
One of the most current issues regarding constitutional interpretation revolves around judicial activism.
We hear in the media and press, and read in scientific articles, references to judicial activism, both defending and attacking this practice.
However, in order to form an opinion about its potential pros and cons, it is important that we understand exactly what it is about.
Come on!
Judicial activism: exploring its characteristics
Judicial activism in Brazil is a broad concept and its manifestation and intensity can vary over time. Opinions on its nature and consequences also differ among scholars and legal experts in Brazil.
In a preliminary assessment, Elival Ramos considers judicial activism as "a dysfunction in the exercise of the judicial function, notably to the detriment of the legislative function."
In constitutional matters, judicial activism is directly related to the activity of interpreting and applying the Constitution of the Republic.
The professor understands that, in common law countries – which have a legal system where judicial decisions are based on established case law, such as in the United States – activism does not carry a negative connotation.
In fact, it is a praised practice because it allows the law to adapt to new social demands and interpretative guidelines.
In this reality, the Judiciary plays an active role in the process of creating law. This makes it difficult to establish parameters for identifying potential abuses of jurisdiction against the Legislative branch.
Regarding Brazil, Ramos understands that judicial activism is notably manifested in the "excessively creative" decisions of the Judiciary. This use goes beyond the boundaries of the judicial function, mainly to the detriment of the typical activity of the Legislative branch (and even the administrative and executive branches).
This activity also violates the principle of separation of powers, enshrined in Article 2 of the Federal Constitution.
The professor is emphatic:
“If, through activist practice, the meaning of the applied constitutional provision is distorted in any way (through interpretation detached from textual limits, by attributing effects incompatible with it or that should be weighed by another branch of government, etc.), the judicial body is distorting the work of the original Constituent Power itself and perpetrating a genuine unconstitutional mutation, a practice whose gravity speaks for itself.”
Elival Ramos's view that judicial activism involves restricting the activities of another branch of government, however, is not unanimous.
Luís Roberto Barroso, for example, sees judicial activism as "an attitude, the choice of a specific and proactive way of interpreting the Constitution, expanding its meaning and scope."
According to the Supreme Court Justice, judicial activism typically arises when the Judiciary is inactive. Another situation occurs due to a certain disconnect between the political class and civil society. This reality is preventing social demands from being effectively met.
Regarding activist stances, Barroso highlights some behaviors that are commonly observed:
- The Constitution is directly applied to situations not expressly contemplated in its text, making prior pronouncements by ordinary legislation unnecessary;
- Normative acts issued by the Legislature are declared unconstitutional based on less stringent criteria compared to those of clear violation of the Constitution;
- Public authorities are subject to either actions (commissions) or omissions (abstentions), primarily in matters of public policy.
The premise of judicial activism is this: it seeks to extract the maximum potential from the constitutional text, taking care not to encroach upon the field of free legal creation.
One word of caution: activist decisions should be occasional, occurring at specific historical moments, and not a recurring practice.
By taking on this leading role, Barroso sees a positive side: "the Judiciary is addressing demands from society that could not be met by parliament, on issues such as public service strikes, the elimination of nepotism, or electoral rules."
However, it does not fail to consider negative aspects: it highlights difficulties faced by the Legislative branch, which is going through a crisis of credibility. One of the consequences we have witnessed is the shift of the country's agenda from the Legislative branch to the Judiciary.
Barroso acknowledges three recurring objections to judicial activism and puts forward some arguments to support them.
1. Risks to democratic legitimacy
Although judges were not elected to office by popular vote, they still wield political power, including the ability to invalidate acts of the other two branches of government, by constitutional mandate.
In this way, they become co-participants in the process of creating law, even more so considering that they have the responsibility of assigning meaning to vague, fluid, and indeterminate expressions, such as the dignity of the human person.
Furthermore, in the case of the Supreme Federal Court (STF), considering that (a) it is the guardian of the Constitution, and that (b) the Constitution must protect fundamental values and rights (even against the "will of the majority"), it must safeguard democracy and fundamental rights.
In this sense, the Supreme Court functions as a "forum of principles": not of politics, political ideologies, or religious conceptions, but of public reason.
According to Barroso, the Supreme Federal Court (STF) must defer to the decisions of Congress, acting only to preserve democracy and fundamental rights, within constitutional limits.
2. Risk of politicization of the Judiciary
"Law is not politics," argues Barroso, meaning that one cannot allow free, biased, partisan, or fully discretionary choices by the Judiciary.
Judges, both male and female, cannot be populist, so they must sometimes make counter-majoritarian decisions to defend and promote fundamental rights.
"Therefore, the intervention of the Judiciary, in these cases, remedying a legislative omission or invalidating an unconstitutional law, is in favor of and not against democracy," he concludes.
3. The institutional capacity of the Judiciary and its limits
Considering the Brazilian institutional arrangement, the Judiciary has the final say in cases of disagreement in the interpretation of constitutional or legal norms. However, not every matter should be decided in a court.
The Minister summarizes: "The Judiciary can almost always interfere, but it shouldn't always." It should, therefore, verify whether another branch of government, body, or entity would be better qualified to decide on the matter at hand.
Cases of “interference” occur precisely when (a) a particular issue is brought to court due to inertia in the majority political process; (b) when this majority political process is unable to produce consensus; or (c) when a fundamental right is being violated or a constitutional norm is clearly being affronted.
Finally, a word of caution:
"Judicial activism, up until now, has been part of the solution, not the problem. But it is a powerful antibiotic, whose use should be occasional and controlled. In excessive doses, there is a risk of dying from the cure. The expansion of the Judiciary should not divert attention from the real dysfunction afflicting Brazilian democracy: the crisis of representativeness, legitimacy, and functionality of the Legislative Branch."
How can I deepen my knowledge on this topic?
Discussions surrounding judicial activism are becoming increasingly profound, with different nuances, and involving the most diverse segments of society.
It is important that you, as a legal professional, always have up-to-date knowledge as ammunition to excel in your practice and studies.
The Professional Master's Program in Law at IDP in São Paulo has a specific track in Institutions, Public Law, and Development.
Some of the topics covered in depth by the Program are:
- separation of powers;
- effectiveness of fundamental rights;
- judicial activism;
- judicialization of politics;
- State organization;
- State institutions and their roles;
- Constitutional review;
- public budget; and
- federalism.
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References
BARROSO, Luís Roberto. Judicialization, judicial activism and democratic legitimacy. Thesis , Rio de Janeiro, v. 5, n. 1, 2012, p. 23-32.
RAMOS, Elival da Silva. Judicial activism: dogmatic parameters. 2nd ed. São Paulo: Saraiva, 2015.
