O STF cordial: o modelo da deferência ao Poder Executivo nos julgamentos de recurso extraordinário

Abstract

The object of this thesis is the deferential behavior of the Brazilian Federal Supreme Court (STF) towards the Executive Branch in judgments on extraordinary appeals with general repercussion involving public law issues. Its main objectives are: 1. to identify and understand the mechanisms and formal and informal institutions that determine this deference; 2. whether this deference is detrimental to the protection of rights; 3. to understand the reasons why great part of the Brazilian legal academy is bothered by such deferential behavior. Its general objectives are to rethink the evolution of the Brazilian Judiciary, the STF and the judicial review in Brazil, especially by studying recent judicial reforms. The aim is to achieve a more refined and informed understanding of the real (and therefore less idealized) role of the STF in defending rights and in the functioning of the Brazilian democracy, so that future suggestions for institutional reforms may be more feasible. To this end, a legal-exploratory methodology is adopted, with a theoretical research technique, and the theoretical frameworks of the New Institutionalist Economics (NEI) and the New Political Economy (EPI). A comparative study of two extraordinary appeals involving the Executive's interests in controversial issues of public law (one with the presence of several amici curiae and the other without the presence of any amicus curiae) reveals the following results. First and foremost, the STF's deference to the executive branch is related to the way in which the political regime (especially defined by the composition of the legislature) selects the Justices, and to the court's search for institutional legitimacy, with the executive branch being an obvious focal point, as it more easily signals where the popular will lies. In addition to these mechanisms, there is also the fact that the Justices are part of the state elite and share its preferences, as well as the phenomenon of "cultural capture", through which Justices and other public agents (mainly from the Executive) become involved in common networks of relationships and identity groups for maintaining their status. The paper concludes that deference is not intrinsically problematic, as it reflects, in particular, the STF's search for political legitimacy and democratic stability. However, it can be problematic, particularly in view of the absence of institutions to deepen the court's argumentative and decision-making process. Finally, it also concludes that the legal academy’s dissatisfaction with deference is related to the lack of understanding of the relationship between law and politics in the Brazilian context, which arose in the unmediated transition to the Republic in 1889, which, without a tradition of the doctrine of stare decisis and without a deeper understanding of common law, abandoned the paradigm of administrative jurisdiction (Council of State), which balanced relations between the legal and political spheres, and adopted the creation of a Federal Supreme Court lacking the power to issue binding effect rulings.