THE SUPREME COURT AND THE EXERCISE OF COUNTER-MAJORITARIAN POWER

ARE THERE INSTITUTIONAL GUARANTEES THAT THE COURT WILL ACT AS AN "ENLIGHTENED VANGUARD"?

Abstract

Starting from STF’s Minister Luis Roberto Barroso’s assumption, that the Court must exert an illuminist and countermajoritarian function in the defense of the minorities and the fundamental rights, the presents article aims to understand if there are institutional mechanisms capable to guarantee that the STF’s decisions are made in observance to this guarantor bias. We utilized the hypothetic-deductive method to investigate the possibility to control and evaluate the Court’s decisions in three different focuses. First, we aim to understand if the STF has vertical accountability and if this is a fit mechanism to guarantee that the Court’s decisions follow Barroso’s scope. Following, we investigate if it’s possible to apply the institute of horizontal accountability to the STF. At last, we analyzed the Court’s Internal Regiment, looking for guarantees to achieve the Court’s objectives on each Minister’s individual positionement. By the end of the research, in despite of the neo constitutionalists authors conclusions (and especially Supreme Court’s Justice Barroso’s conclusions), and in despite of the possibility for the STF to act as an “illuminist vanguard, uncharged of pushing History when it gets stuck”, nothing guarantees that the STF will do so. Acting like that is a discretionary movement of each Supreme Court’s Justice, with no constitutional or institutional guarantees that they will do so, and with no control mechanism or possibility to punish the ones that don’t aim and achieve the STF’s objectives.