Citizens against the State: the riddle of high impact, low functionality courts in Brazil

Abstract

The Brazilian federal judiciary offers an interesting riddle to scholars of judi-cial politics and policy change. While the courts have played a major policy role over the past two decades, constraining and altering federal policy across a range of subjects, the court system has simultaneously been labeled " dysfunctional. " This paper investigates this riddle: a system plagued by major systemic flaws in its day-to-day operations, which nonetheless still manages to exert a powerful influence on public policy in Brazil. I adopt a new institutional perspective, focusing on how the institutional and normative structure within which judges and other legal actors operate affects policy outcomes. A wide variety of disputes and conflicts have arisen out of the twin economic and political transitions that followed the end of military rule in Brazil. In resolving these conflicts, Brazilian federal courts have repeatedly been thrust into the vortex of policy debate. Brazilian courts have taken an active, dynamic stance: they have shaped policy choices, influenced policy implementation, challenged many of the executive-driven reforms of the 1990s, and stalwartly defended the 1988 Constitution. On numerous occasions, federal courts have been called upon to challenge