A atuação contramajoritária e representativa do supremo tribunal federal: a judicialização da política na nova ordem democrática.

Abstract

The current work discusses the judicialization of politics that has been caused by the contramajoritary and representative acting of the Federal Supreme Court (Supremo Tribunal Federal – STF). Established with the promulgation of the 1988 Federal Constitution, the new democratic order implied significant changes in the inner political scenario. In order to fulfill democracy, the three power of Republic, Legislative, Executive and Judiciary, act harmonically in the pursuit for the common good. To the Federal Supreme Court, high court of the Judiciary Power, it was ruled by the Fundamental Rule of Law the function of guardian of her sayings. In order to fulfill such a function in a full way, nowadays, the Supreme Court has been embodying the contramajoritary and representative roles, acting, in the first case, on the defense of the less favored classes against the overwhelming majority, protecting the rights and fundamental guarantees predicted by the Federal Constitution and, in the second case, acting as a fulfiller of the constitutional dictations before the negligence of the Legislative Power. The goal of this survey, therefore, is to do a detailed analysis of the acting of the Federal Supreme Court when it is dressed in those two roles, and, in that perspective, it will study the existent relation between democracy and constitutionalism, as well as the historical evolution of the constitutional jurisdiction. Several studies are being developed focusing on analyzing that phenomenon that interferes in the whole structure of the law system, that is why it is relevant to investigate the consequences of that new trail followed by the Supreme Court. Thus, it must be asked: when the Federal Supreme Court acts in a contramajoritary and representative way, is it breaking the principle of separation of powers? Playing those roles, does the Constitutional Court contribute for strengthening democracy or does it break structural pillars of that government regime, weakening it, instead? In order to reach the goal to which this work commits, it will be used as a method of approach the deductive one; as a method of procedure, the monographic and historical ones, and as a research technique, the indirect documentation, specially the bibliographic one. After the doctrine and empiric analysis of the way through which the Brazilian legal system was structured it is clarified that the acting of the Federal Supreme Court contributed for the effectiveness of the constitutional sayings, resulting in the maturation of the democratic order, for, by playing the contramajoritary and representative roles, the Constitutional Summit fulfills, as a final and greater goal, the popular sovereignty, through the consummation of the popular wishes.