Jurisdição constitucional e equilíbrio entre poderes: uma análise da crise institucional brasileira à luz da jurisprudência do Supremo Tribunal Federal

Abstract

The exercise of judicial review in Brazil, especially during the current decade, has incited intense debates in the academic and political spheres, especially since the decisions proclaimed by the Federal Supreme Court (STF) have repeatedly usurped the jurisdiction of the other constituted powers. The recurrence of such decisions reveals the need to find out the reasons why the most relevant court of the Judiciary, when analyzing matters submitted to judicial review, ends up performing typical legislator activities and, in some cases, directing commands the head of the executive branch. In addition to finding the reasons, solutions must also be found by setting clear parameters and criteria to control STF activism. The analysis of cases already decided by the Brazilian Constitutional Court is essential for observing the various aspects listed as the object of this research. Thus, the case of homosexual marriage (ADI 4277 / DF), the possibility of imprisonment of the convicted person after the Court of Appeal’s trial (ADCs 43 and 44 / DF) and the declaration of Unconstitutional State of Affairs (ADPF No. 347 / DF) will be the cases analyzed to verify the position of the STF’s judicial activism in judging cases of high repercussion and in judicial review. It seeks to find the reasons for the phenomenon, as well as the possible consequences for the maintenance of the balance between the powers constituted in Brazil. Finally, in the final considerations, it is proposed the model of control of the decisions taken by the Federal Supreme Court.