A SUPREMA CORTE E A DEMOCRACIA: UM ESTUDO ACERCA DA LEGITIMIDADE DEMOCRÁTICA DA JURISDIÇÃO CONSTITUCIONAL

Abstract

This paper makes an analysis about the democratic legitimacy of constitutional jurisdiction. So, evaluates how, in a democratic state of law, the judiciary, a branch of Power whose members are not elected by popular vote, by the use of the constitutional jurisdiction, instrumentalized by the Supreme Court, may be the ultimate interpreter of the Constitution, imposing its decisions to the whole society, without the possibility of questioning those decisions nor directly nor through their elected representatives in the Legislative or Executive branches. Therefore, undertakes an analysis of the mainstream doctrine about the democratic legitimacy of constitutional jurisdiction, addressing authors who are totally against the supremacy of the judiciary, through authors who accept such supremacy with reservations to get the authors that accept a broader way to that supremacy. To this doctrinal analysis, this study adds the analysis of certain judgements of the Federal Supreme Court to illustrate the performance of this front to the inertia of the legislature to regulate certain issues, escaping the latter of its institutional role. Finally, it concludes that the democratic legitimacy of constitutional jurisdiction rests on the fact that the judiciary, precisely because its members are not elected, is the most appropriate instance of the state power to defend the Constitution, by the fact that the absence of popular vote makes the judges act in a more independent way, allowing them to enforce the Constitution against the will of possible majorities, thus ensuring the protection of minority rights. If it were assigned the defense of the Constitution to the legislature and the executive, these, under the pressure of the votes they received, they could act in a way more subordinate to the desires of the majority. This conclusion, however, does not exclude the need for the decisions of the courts to have popular participation, which can occur through public hearings and participation of amici curiae.

Keywords: Constitutional jurisdiction. Democratical legitimacy. Supreme Court.