The court in the land of unpredictability

The counter-majoritarian role of the courts, the passive virtues of Alexander M. Bickel, and judicial review in the Brazilian democratic state

Abstract

This article aims to evaluate the active role of the Brazilian judiciary, especially the Supreme Federal Court (STF), and the potential problems that this activism can generate for a democracy. To this end, it aims to present judicial review and assess the contributions of Alexander M. Bickel's theory on passive virtues and the counter-majoritarian principle, and its possible and/or viable application in Brazil. Thus, the general objective of this article is to rethink the role of the STF in the manner proposed by Bickel in his theory, to overcome the dichotomy between judicial activism and deference to the legislature. The specific objectives are to evaluate the level of Brazilian judicial activism, as well as judicial review, and to propose a new way of approaching the situation through Bickel's theory. Furthermore, this article aims to discuss the application of the counter-majoritarian principle and the passive virtues of the Judiciary to address Brazil's overly strong activism. It is concluded that by using passive virtues, the court would avoid definitively positioning itself to the detriment of its function as guardian of principles or confronting public opinion and majority powers, which would contribute to the strengthening of democracy, which is experiencing a depletion of the certainties that sustain it. To this end, a critical approach was used, and the investigation was developed through bibliographic research.