Resumo

ARGUELHES, Diego Werneck  e  SUSSEKIND, Evandro Proença. Building judicial power in Latin America: opposition strategies and the lessons of the Brazilian case. Rev. Urug. Cienc. Polít. [online]. 2018, vol.27, n.1, pp.175-196. ISSN 0797-9789.  https://doi.org/10.26851/rucp.27.8.

Studies on courts in Latin America have increasingly focused on high court behavior and its relationship with governments, explaining patterns of judicial activity with variables of institutional design, judicial preferences, and political context. In this paper, we point to additional complexities in the interaction between the variables discussed in the literature. First, as judicial preferences can directly shape institutional design, we argue that understanding transformations in patterns of judicial politics over time requires us to consider processes of building judicial power as relatively independent from the actual use of judicial power. Second, in this picture, the role of the political opposition is more crucial. Existing studies have largely tried to understand judicial behavior in relation to the incumbent government, which is decisive in shaping the strategic incentives around the use of judicial power. In the building of judicial power, however, the opposition plays a more crucial role. We illustrate these propositions in a brief discussion of all the Mandados de Segurança (MS) filed before the Brazilian Supreme Court between October 1988 and May 2016. These amparo-like remedies, although designed to have very limited scope and to reach the Supreme Court in rare circumstances, have expanded over time, as a tool for the exercise of judicial power in the political arena, through the interaction among judges, the political opposition and political minorities in general. The central role the MS have taken in Brazilian politics cannot be accounted for if we focus just on the relationship between the court and the incumbent government. The dynamics around these lawsuits illustrate a kind of partnership between the court and the opposition that, however inconsequential in the short run might create more favorable conditions for the future judicial exercise of power.

Palavras-chave : politics; Latin America; Brazilian Supreme Court; Institutional design; Judicial preferences.

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