Prof. Murillo Gutier

Murillo Gutier | murillo@gutier.adv.br

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Abstract

This article examines the phenomenon of judicial activism and the consolidation of a juristocracy in the Brazilian legal system. The study analyzes how the Supreme Federal Court (STF) has progressively expanded its institutional boundaries, appropriating functions historically reserved for the Legislative Power and displacing the center of political discussions toward the judicial sphere. Drawing upon the theoretical framework of Ran Hirschl on juristocracy and Jeremy Waldron on the government of judges, the article distinguishes between judicialization — a natural consequence of the 1988 Constitution — and judicial activism as an interpretive posture that surpasses institutional limits. The work critically examines judicial decisionism, the phenomenon of ministrocracy and the violation of collegiality in constitutional control, relying on the contributions of Lenio Streck, Georges Abboud, and Miguel Godoy. The analysis is further enriched by Byung-Chul Han‘s philosophical critique of self-founded power, which provides a theoretical foundation for understanding activism as a degenerate form of authority that legitimates itself exclusively through itself. The article concludes that all activism compromises democracy and the autonomy of Law, advocating for institutional balance and the primacy of legislative deliberation within the framework of the separation of powers.

Keywords: Judicial Activism; Juristocracy; Separation of Powers; Democracy; Supreme Federal Court (STF); Ministrocracy; Self-Founded Power; Judicial Decisionism; Constitutional Jurisdiction.

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Glossary of Procedural Instruments of the Supremo Tribunal Federal (STF)

Abbreviation / Expression	Explanation in English
STF – Supremo Tribunal Federal	Supreme Federal Court of Brazil. Highest judicial instance in the Brazilian legal system, functioning as the Constitutional Court. Responsible for upholding the Federal Constitution of 1988, settling conflicts of competence between the branches of government, and exercising concentrated judicial review. Composed of eleven justices (Ministros), appointed by the President and confirmed by the Senate.
STJ – Superior Tribunal de Justiça	Superior Court of Justice. Highest instance for the interpretation and uniform application of ordinary federal law (below the constitutional level) throughout Brazil. Responsible for harmonizing the jurisprudence of state and federal courts in non-constitutional matters.
ADI – Ação Direta de Inconstitucionalidade	Direct Action of Unconstitutionality. Instrument of concentrated judicial review filed before the STF to challenge the unconstitutionality of a federal law or normative act. The decision has general binding effect (erga omnes). Only the entities listed in Article 103 of the Federal Constitution have standing to bring this action.
ADO – Ação Direta de Inconstitucionalidade por Omissão	Direct Action of Unconstitutionality by Omission. Instrument aimed at establishing an unconstitutional legislative omission. The STF may set a deadline for the competent body to remedy the omission. Paradigmatic case: ADO 26, concerning the criminalization of homophobia and transphobia.
ADPF – Arguição de Descumprimento de Preceito Fundamental	Claim of Non-Compliance with a Fundamental Constitutional Precept. Subsidiary instrument filed before the STF when no other constitutional remedy is adequate. It may target acts of public authorities at all levels, including pre-constitutional norms — distinguishing it from the ADI.
MI – Mandado de Injunção	Writ of Injunction. Instrument for the protection of fundamental rights whose exercise is impossible due to the absence of legislative regulation. Paradigmatic case: MI 4733, decided jointly with ADO 26, leading to the criminalization of homophobia.
RE – Recurso Extraordinário	Extraordinary Appeal. Remedy filed before the STF to challenge decisions of lower courts that violate the Federal Constitution. Instrument of diffuse judicial review. Since Constitutional Amendment No. 45/2004, admissibility requires demonstration of “general repercussion” (repercussão geral).
Repercussão Geral	General Repercussion. Admissibility requirement for the Extraordinary Appeal (RE) before the STF, introduced by Constitutional Amendment No. 45/2004. The legal question must have significance beyond the individual case. Once recognized, the STF’s decision binds all lower courts in similar cases.
AP – Ação Penal	Criminal Action. Before the STF, filed within the Court’s original jurisdiction for persons who enjoy privileged jurisdiction by office (foro por prerrogativa de função). Exemplary cases: AP 1021, 1022, and 1023, cited in connection with the “Ministocracy”.
Controle Concentrado	Concentrated Judicial Review. Constitutional review conducted exclusively by the STF (federal level) or State Courts (state level). Decisions have general and binding effect (erga omnes and efeito vinculante). Instruments include ADI, ADO, ADC, and ADPF.
Controle Difuso	Diffuse Judicial Review. Constitutional review exercised by any judge or court in a specific legal dispute. The decision generally produces effects only between the parties (inter partes). It reaches the STF through the Extraordinary Appeal (RE).
Decisão Monocrática	Monocratic Decision. Decision rendered by a single justice of the STF without participation of the full bench. Subject of criticism when issued in constitutional matters without subsequent submission to the full bench — a phenomenon referred to as “Ministocracy”.
Plenário	Full Bench / Plenary Session. Assembly of all eleven justices of the STF. Responsible for deciding the most important constitutional questions. The “virtual plenary” (plenário virtual) allows electronic voting without oral debate — criticized by Godoy as a “silent plenary”.
Efeito Vinculante	Binding Effect. Effect of STF decisions in concentrated judicial review, which bind all judicial bodies and public administration entities at all levels. One of the most important features of concentrated constitutional review in Brazil.
Silêncio Eloquente	Eloquent Silence. Interpretive figure coined by the STF in ADI 347-SP, treating deliberate silence of the constituent legislature as an implicit normative decision. The absence of an express provision is understood as a conscious exclusion that cannot be overcome through judicial construction.
Foro por Prerrogativa de Função	Privileged Jurisdiction by Office. Jurisdictional rule whereby certain officeholders are tried before a higher court by virtue of their office. Federal representatives and senators are subject to the original criminal jurisdiction of the STF for offenses committed in the exercise of their mandate.

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