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The Procrustean Bed in the Brazilian Supreme Federal Court: Fractures of Judicial Activism and Fissures in Constitutional Democracy – Murillo Gutier

Prof. Murillo Gutier | murillo@gutier.adv.br

Abstract

This article examines judicial activism in the Brazilian Supreme Federal Court (STF) through the metaphorical image of the Procrustean bed. Drawing on Georges Abboud’s classification, it employs mythological figures — Echo, the Oracle of Delphi, Procrustes, Prometheus, Pygmalion, the Bacchants, the Erinyes, Daedalus, Endymion, and Cronos — to illuminate the different modalities of activism that produce fractures in the constitutional order and fissures in the democratic structure.

The central thesis holds that judicial activism must be understood as a process of transition between fissure and fracture: the fissure emerges when the decision begins to drift from the Constitution, statutes, and due process, even under seemingly noble justifications; the fracture occurs when this practice solidifies into a decisional method, compromising the structure of constitutional democracy. Judicial self-restraint, therefore, is not institutional cowardice but rather the mast of Ulysses — the mechanism through which the Court binds itself to law so as not to succumb to seductions external to the Constitution.

The article concludes that the countermajoritarian role of the STF, though indispensable, presupposes rigorous fidelity to the Constitution, statutes, and the procedural framework. Without these bonds, constitutional adjudication ceases to protect the Constitution and begins to replace it with judicial power. The Court may hear the Sirens; it may not follow their music.

Keywords: Judicial Activism; Procrustean Bed; Constitutional Fractures; Constitutional Democracy; Judicial Self-Restraint; Supreme Federal Court (STF); Separation of Powers; Performative Activism; Democratic Fissures.

The Procrustean Bed in the Brazilian Supreme Federal Court – Murillo Gutier (2 downloads )

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Judicial Activism and Juristocracy: Barroso’s Decision on Abortion as a Paradigm of Self-Grounded Power – Murillo Gutier

Murillo Gutier | murillo@gutier.adv.br

Abstract

This study examines the farewell vote of Justice Luís Roberto Barroso favoring the decriminalization of abortion up to the twelfth week, investigating three phenomena frequently noted in specialized literature: judicial activism, juristocracy, and ministrocracy. The first refers to the overcoming of positive normative frameworks through extralegal reasons — moral, political, or ethical views of the adjudicator — culminating in decisionism. The second, in institutional terms, describes the judicial capture of politically sensitive decisions previously reserved to democratic deliberation. The third highlights the intense monocratic activity at the Supremo Tribunal Federal, which empties out collegiality and weakens the deliberative virtues proper to a constitutional court.

From this framing, the analyzed vote is shown to exceed the typical countermajoritarian function of judicial review — guardian of constitutional supremacy — and to invade the sphere of political conformation reserved to the legislator, converting individual valuative preferences into normative parameters. The critical point does not reside in the substantive theme in dispute, but in the method of decision: when reasons not extracted from the constitutional text or the law come to govern the outcome, jurisdiction ceases to operate as a limit and begins to act as an autonomous source of normative production, with effects on individual liberties and on the very separation of powers.

The study articulates the concrete case to the theoretical categories mentioned and confronts a relevant element of the Supremo Tribunal Federal itself: the idea of the eloquent silence of the legislator, whereby the deliberate absence of normative regulation may express a valid political choice to await the maturation of the social debate. The purpose is to circumscribe the examination to verifiable institutional questions, making explicit the methodological criteria that guide the analysis — textuality and structure of the Constitution, coherence with consolidated jurisprudence, standard of deference to the Legislature, and observance of collegiality.

Keywords: Judicial Activism; Juristocracy; Ministrocracy; Separation of Powers; Decisionism; Self-Grounded Power; Eloquent Silence; Democratic Legitimacy; Supreme Federal Court (STF).

Judicial Activism and Juristocracy – Murillo Gutier (1 download )