The proactive performance of the Supreme Federal Court has raised criticism and fears over the past few years. It is feared a disharmony between the Powers. However, the answer to this fear would not be an excessive limitation in their performance. For this reason, the present work will analyze the constitutional role of the Judiciary Power in the inauguration of the Brazilian Republic, more specifically its top organ, the Supreme Federal Court. After that, it will briefly and succinctly compare the actions of the Supreme Court in both the First and Sixth Republics of Brazil. Through doctrinal, jurisprudential and normative sources, we will seek to emphasize the importance of the Supreme Federal Court of Brazil in guaranteeing Brazilian constitutional rights, as well as the need to maintain harmony between the Powers.

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A Primeira República Brasileira e o Supremo Tribunal Federal: aprender com o passado para não errar no presente e melhorar no futuro

The paradigm of the Rule of Law, with the purpose of realizing the rights provided for in the Constitution, entrusted to the Judiciary Power the honorable mission to give effect to constitutional rights. In this way, the leadership of this Power, the STF, has become one of the protagonists in the political stage of Brazil, which has raised doctrinal discussions and the public sphere about its legitimacy in acting proactively. Analyze, through historical reconstructions as to the origins of the principle of Separation of Powers and of the Democratic State of Law enshrined in the 1988 Brazilian Constitution, the risk that the juxtaposition of one of the Powers over the others represents for (re)conquered national democracy.

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Breve história do princípio da separação dos poderes nos paradigmas do Estado de direito

The legal thought has undergone significant historical changes that increased the role of interpreter and law applicator and hence created greater autonomy of the judiciary in relation to the legislative branch: judges are not anymore the “mouth of the law” and became partners in the law-making process. In addition, the new constitutional reality sets a pretentious social project and ensures substantial guarantee to the material rights, judicializing various issues of life, which resizes the judiciary and makes it active in the process of realization of promises and democratic values, obliging the government to take the necessary measures to carry out constitutionally guaranteed rights. The judiciary thus now has greater autonomy in this constitutional jurisdiction scenario. It took a leading role and has occupied the voids caused by the omission and shortcomings of the other powers, so that the legalization and judicial activism have been used as remedies to enforce the Constitution, to give more effective application to legal rules and to advance the process of democratic consolidation.

Lucas Lobato Magioni

Papers

Judicialização e ativismo judicial na perspectiva do estado democrático de direito