MONTENEGRO, I. D.; http://lattes.cnpq.br/5095250318725710; MONTENEGRO, Isadora Dantas.
Resumen:
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.