Abstract

HSU CLETO, Vinicius. Separation of Powers and Judicial Supremacy: Case Analyses in Brazil. Cuest. Const. [online]. 2019, n.41, pp.429-455.  Epub Apr 22, 2020. ISSN 1405-9193.  https://doi.org/10.22201/iij.24484881e.2019.41.13953.

Contemporary constitutional jurists notice that the burgeoning role played by Constitutional Courts regarding political and abstract topics represents a threat to the legitimate functions of the Legislative, usually composed by directly elected members. Furthermore, judicial decisions tend to affect the Executive, since the budget is employed to assure the efficacy of abstract and general decisions. This article studies the arguments that emphasize a trend towards a “judges’ government”. Those propositions are confronted with arguments that demonstrate judicial legitimacy on abstract decisions. The hypothesis affirms that, inside functional constitutional systems, nor the Parliament nor the Judiciary have the final say in abstract regulation. In order to demonstrate the validity of the assertion, two different cases are scrutinized: i) same-sex marriage in Brazil; ii) Brazil’s “vaquejada”, a sport considered unconstitutional by the Federal Supreme Court, but subsequently accepted by Constitutional Amendment n. 96/2017.

Keywords : Constitutional jurisdiction; Judicial supremacy; Minority rights.

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