Passiveness, Activism and Constitutional Bullying: The Supreme Federal Court and Brazil's Fragile Rule of Law

Abstract

The paper identifies the different roles played by the Brazilian Supreme Federal Court under the 1988 Constitution, adopted after 21 years under authoritarian rule. The aim is to shift the focus of the discussion regarding the counter-majoritarian difficulty, which insists on the illegitimacy of judicial review, to the difficulty of being counter-majoritarian, examining the institutional obstacles and limitations attendant upon judicial independence.