The Rule of the Courts

Adriana Ancona de Faria

6. The STF validated legislation reserving racial quotas in public service entrance examinations across all three branches of the federal government. 7 7. The STF recognized the existence of an “Unconstitutional State of Affairs” within the Brazilian prison system. 8 When examining the importance of STF decisions in the protection of fundamental rights, it appears that its institutional prominence initially strengthened the democratic aspirations of the social rule-of-law state envi sioned by the 1988 Constitution. For approximately two decades, this perception may have held true. Over time, however, legislative omission combined with judicial protagonism began to generate distortions that proved problematic for a democratic project of society. The first major criticism of judicial activism in Brazil concerned the Judiciary’s increasing role in shaping public policies through judicial decisions, thereby encroaching upon the mandate of the Executive Branch. This debate was particularly marked in cases involving the rights to life and health. Judicial orders compelling the provision of medications outside the official list of the Unified Health System ( Sistema Único de Saúde – SUS ) revealed an imbalance among the branches of government and raised concerns about distributive inequality in the protection of the right to health. After extensive public debate, the Judiciary gradually adopted a more restrained approach, affording greater deference to elected officials, who in turn were compelled to act more consistently and effectively in implementing constitutionally mandated public policies. A second moment of tension and criticism emerged from judicial inter vention in electoral matters. During this period, courts began to define institutional arrangements in opposition to the Legislature, often through casuistic and inconsistent reasoning, and – more critically – by claiming final authority over political and representative choices for which they lacked constitutional competence. Faced with the Legislature’s prolonged failure to address much-needed political reform, the Judiciary chose to intervene in a fragmented and disordered

7 Declaratory Action of Constitutionality n° 41, 2017. 8 Declaratory Action of Fundamental Precept n° 347, 2023.

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