Paths to self-restraint: between the shadow of activism and the light of legality

Abstract

ABSTRACT: This study analyzes judicial activism in the Brazilian Supreme Court (STF), distinguishing scenarios in which constitutional jurisdiction simply enforces rights from those in which it effectively creates new restrictions on rights without formal legislation. The research problem lies in determining how far the STF’s decisions can go beyond constitutional boundaries and invade the Legislature’s domain, especially when imposing unprecedented sanctions or duties. The justification arises from the Court’s prominence in politically sensitive disputes and the ongoing debate about its democratic legitimacy. The main hypothesis posits that judicial activism is not synonymous with the judicialization of politics: while the latter stems from the constitutional design, the former appears when the STF goes beyond normative interpretation to legislate de facto, establishing restrictions not authorized by any statute. The method relies on bibliographic research and case analysis—especially ADPF 378, MS 34131, and ADPF 635—alongside theoretical discussions on the STF’s countermajoritarian role, the “open society of constitutional interpreters,” and the idea that no “responsible activism” exists where new restrictions on rights are concerned. The conclusion is that, although constitutional jurisdiction can indeed promote rights, it must respect the principle of legality (article 5, II, CF) to prevent the Judiciary from becoming a primary source of prohibitions, undermining the democratic principle.

Key-words: Judicial Activism; Judicialization of Politics; Brazilian Supreme Court; ADPF 378; MS 34131; ADPF 635