PROTAGONISMO JUDICIAL E REAÇÃO LEGISLATIVA: UMA ANÁLISE DA RELAÇÃO INSTITUCIONAL ENTRE CONGRESSO NACIONAL E SUPREMO TRIBUNAL FEDERAL

Abstract

The 1988 Constitution marked a symbolic and legal milestone in Brazil’s constitutional history. Including in its text several matters not commonly addressed in other Constitutions, the constituent also developed a robust jurisdictional system to prevent potential violations of constitutional provisions. Within this context, the Federal Supreme Court (STF) came to take a leading role in this system, being granted the new responsibility of safeguarding the Constitution. Over the years, as the Supreme Court adapted to its new competencies, the institution began to adopt a more pragmatic approach in resolving the cases brought before it, consistently engaging in what has come to be known as judicial activism. Consequently, the STF began to gain prominence in the sociopolitical sphere and, as a result, to approach the attributions of the other branches of government, particularly the Legislative. In this manner, what is referred to as the “backlash effect” began to emerge within the National Congress, stemming from lawmakers’ differing interpretations compared to those of the Court’s justices, as well as from the dissatisfaction of certain parliamentarians with the STF’s mode of operation. A climate of tension thus developed between the Legislative and Judicial branches, one which has persisted for nearly twenty years, with no clear prospects for resolution. In this scenario, the present research aims to understand how the institutional relationship between the Federal Supreme Court and the National Congress has evolved in recent years, especially regarding the idea of institutional dialogue and harmony among powers. To answer this question, the study analyzed paradigmatic cases of legislative reaction, focusing on Constitutional Amendment Proposals (PECs) 33/2011, 8/2021, 50/2023, and 28/2024, whose main objective is to alter the effects and dynamics of constitutional review carried out by the Supreme Court. The analysis of these legislative movements showed that members of the National Congress, dissatisfied with the Court’s behavior, began reacting in ways that aim to alter the structural foundations of the Brazilian separation of powers and system of checks and balances, seeking to concentrate constitutional interpretation within their own prerogatives. Thus, the initial hypothesis was confirmed, demonstrating that the relationship between the two institutions no longer exists as a harmonious relationship between powers, but rather as a constant attempt at the overlapping of prerogatives.