Have you ever stopped to think that the Judiciary, in recent years, has ceased to be merely the "guardian of the Constitution" and has become a true formulator of public policies? This ranges from decisions on the provision of medicines and school enrollments to judgments involving deforestation, racial quotas, and secret budgets: the courts have begun to act as direct agents in the implementation of rights and the correction of the State's course.
1. The rise of the Judiciary and the judicialization of public policies
The judicialization of public policies is not a phenomenon exclusive to Brazil, but in the country it takes on particular characteristics. Since the promulgation of the 1988 Federal Constitution, the country has lived with a Charter that expands social rights and imposes concrete duties on the State, such as health, education, housing, the environment, and social security, among others. This normative density has opened space for citizens, social movements, and the Public Prosecutor's Office to resort to the Judiciary to demand the effectiveness of these rights.
In this context, the Supreme Federal Court (STF) has consolidated itself as a central political actor. Decisions such as ADPF 347 (2015), which recognized the "unconstitutional state of affairs" in the prison system, or the judgment of ADI 3510 (2008), which confirmed the constitutionality of racial quotas in universities, exemplify the structural correction role played by the court.
Similarly, the Superior Court of Justice (STJ) and regional courts have been deciding on health policies, drug financing, public tariffs, and environmental policies, often replacing the decision-making space of the Executive branch.
This prominence generates an ambiguity: on the one hand, the Judiciary guarantees the effectiveness of rights when the other branches of government fail; on the other hand, it alters the institutional balance, replacing technical or political decisions with judicial rulings. For professionals in Institutional Relations, this new scenario creates a hybrid terrain: the traditional space for dialogue with the Legislative and Executive branches now expands to include the Judiciary as a legitimate arena for institutional advocacy, but this action needs to be carefully delimited so as not to be confused with undue pressure or influence over judicial decisions.
2. The new field of activity for Institutional Relations
In the 21st century, Institutional Relations have ceased to be merely a function of political lobbying and have become a multidisciplinary field of public governance. Judicialization broadens this scope: court decisions can directly affect the regulatory environment, the operation of economic sectors, and even the corporate reputation of organizations.
In this sense, judicial advocacy should not be confused with covert lobbying, as it represents a form of transparent institutional dialogue aimed at building more informed and technically sound decisions. Thus, the professional in Government Relations, in this context, acts as a mediator between the technical knowledge of society and the decision-making structures of the State, contributing to the development of evidence-based public policies.
3. Risks of opacity and ethical limits
One of the major contemporary challenges for advocacy in public interest is avoiding what experts call "institutional opacity," that is, the lack of transparency about who influences whom, in what context, and with what resources.
The National Council of Justice (CNJ), for example, issued Resolution No. 351/2020, which obliges magistrates to disclose institutional agendas and meetings with external representatives, in addition to regulating the participation of judges in events sponsored by companies. However, the lack of public control mechanisms over interactions between the private sector and magistrates is still a sensitive issue in Brazil.
4. Judicialization, democracy and new challenges for the State
The increasing judicialization of public policies reopens an old debate about the limits of judicial activism. Critics argue that the expansion of constitutional jurisdiction over budgetary and public policy issues weakens the separation of powers and undermines the legitimacy of decisions made by popular vote.
On the other hand, proponents argue that, in a country with profound inequalities and chronic administrative inertia, the judiciary is the last resort to guarantee the fulfillment of fundamental rights.
Between these extremes, there is an emerging consensus: it is necessary to build mechanisms for inter-institutional cooperation. Instead of replacing the other branches of government, the Judiciary should act as a catalyst for evidence-based public policies, with technical support and dialogue with experts from civil society and the private sector.
The professionalization of RIG (Regional Governance and Information) can be a valuable bridge in this process, providing data, studies, and diagnoses that help the Judiciary understand the social and economic complexity of its decisions.
However, this dialogue will only be legitimate if it is public, ethical, and balanced. The temptation to transform the judicial process into a new space for private influence is a real risk. Therefore, the contemporary challenge is to build a governance model for influence that recognizes the importance of social participation without compromising the impartiality of the justice system.
References
Constitution of the Federative Republic of Brazil, 1988.
Penal Code, art. 332.
Code of Civil Procedure, art. 138.
Law No. 12.846/2013 (Anti-Corruption Law).
Law No. 12.813/2013 (Conflict of Interests).
Law No. 8.429/1992, as amended by Law No. 14.230/2021 (Administrative Impropriety).
Decree No. 11.501/2023 – Establishes the Registry of Representation of Federal Interests.
National Council of Justice (CNJ), Resolution No. 351/2020.
Comptroller General of the Union. Integrity Guide for the Private SectorBrasilia, 2021.
Barroso, Luís Roberto. The New Brazilian Constitutional Law: Contributions to the Theoretical and Practical Construction of Constitutional Jurisdiction in Brazil6th ed. Saraiva, 2021.
