O ativismo judicial no Brasil e seus efeitos refratários à fazenda publica

Abstract

This article aims to raise the discussion about Brazilian judicial activism and its effects refractory to the Public Treasury. To do so, it will make a historical conceptual digression about the phenomenon in Brazil, going from its self-containment to its current protagonism and, consequently, its implications for the State, represented by the Public Treasury. Finally, it will bring to the debate the judicialization of public policies in general, thereby demonstrating, through empirical data, the parallelism between activism and the judicialization of health. In this scenario, the activist phenomenon finds substratum in the new constitutionalism, gaining prominence in Brazil with the advent of the Federal Constitution of 1988; which inserted the neoconstitutionalist values. Thus, seeking to explain how judicial activism has impacted the Public Administration, several consequences are brought to the State, in particular, the increase of its financial responsibility. Likewise, the dilemmatic finitude of public resources and the infinity of social needs will be met. It will deal with the judicial mechanisms found by the Executive Power to use judicial activism, that is, the requests for judicial suspensions, which will be explained in due course, and also take a brief tour of the National Council of Justice's research related to the subject. In view of this, through the hypothetical-deductive method, as well as using empirical data, we intend to analyze judicial activism and the refractory effects on the Public Treasury, demonstrating its negative consequences. In light of these considerations, as a hypothesis of this paper, it understands that the activist phenomenon brings mostly negative results, when weighed by the binary perspective of legal certainty and the realization of social rights.