A supremacia judicial consentida: uma leitura da atuação do Supremo Tribunal Federal a partir da relação direito-política

Abstract

From the last tens years on, a theoretical hypothesis that naturalises judicial supremacy began to be disseminated in Brazil, or, that it is something inherent to the functional prerogatives of the Federal Supreme Court – a specific way of understanding its role, which is extracted from a constitutional argument (that is claimed to be provided by the Constitution). The purpose of the thesis is to deconstruct this idea, demonstrating that there is no presupposed (natural) relationship between judicial supremacy and constitutionality control. In order to do so, it has been observed that the judicial supremacy of the STF is the result of a political context, which emerges from the incorporation of the reading made in Brazil on the role of the judiciary from two traditions: American constitutionalism (in particular, the political dimension of the role of the Supreme Court of the United States) and the constitutional experience of Germany (which gives the Federal Constitutional Court the duty to enforce rights). Combining these two elements, it has been observed that the judicial supremacy manifests itself in the Brazilian context through the granting of three authorities to the STF – interpretative, political and symbolic –, which is then linked to the creation of the following assumptions: that the Court has the last word on the construction of law, that its duty overlaps with those of the majority bodies, and that it is the most enabled (able) branch to translate social desires. The thesis disputes the possibility of granting constitutional protection to this triple way of visualising the exercise of constitutional jurisdiction, problematising the relationship between the branches of government under the contributions of the relationships between law and politics, which means an immersion in the existing difference between the legal sphere and the political field in the analysis of the interaction between the three branches of government, as well as in the distinction between judicial decision and political choice. This leads to the conclusion of the existence of a consented judicial supremacy (not derived from the constitutional text), that is, theoretically (through the recognition of the judicial supremacy by lawyers) and institutionally (by the incentives of elected officials or self- investiture of the STF) constructed. The thesis was developed through the hermeneutic-phenomenological method, being inserted in the thematic axis that Lenio Streck's Hermeneutic Critique of Law provided to Law.