Os mecanismos de freios e contrapesos nas decisões do Poder Judiciário e seus efeitos sobre a democracia

Abstract

This work analyzes the inefficiency of the checks and balances mechanism in the Brazilian regulatory system, in face of decisions by the Judiciary, from the year 1992, and to what extent these decisions, which are not subject to control, affect democracy. The objective is to study the scope, depth, and impact of decisions contrary to popular sovereignty. This is a bibliographic and documentary research, which aims to seek theoretical references to contrast them in the light of the concepts currently adopted by the Constitutional Court and to investigate whether there are anti-democratic elements in them. The study visits definitions of “majority rule”, from ancient Greece to modern authors; examines the tripartition of power and the system of checks and balances proposed by the Federalists, as well as the model adopted in Brazil. With these premises in place, the decisions of the Federal Supreme Court (STF) are examined to verify to what extent they distort the sovereign will of the people. Finally, it is concluded that the STF, contrary to its primary function of guarantor of social peace and legal security, has been imposing a kind of dictatorship of countermajoritarian justice, without any democratic representation. In addition, it adopts a non-transparent agenda, exaggerates its powers and directly affronts the other Powers, inaugurating a new form of government, defined with propriety and lucidity by Professor Oscar Vilhena as the Supremecracy.