Does the constitutional judge represents me? The Federal Supreme Court and the argumentative representation

Abstract

The idea of argumentative representation constitutes a recent response to the democratic objection against the political role of constitutional courts. The thesis sustains that the judge can be conceived as a popular representative, holding democratic legitimacy equivalent to elected officials of the legislative or the executive branches. It flourishes in the theoretical context of expansion of the senses of representation to non-electoral instances, such as participatory institutions of civil society, councils, or social movements. In this article, we put this theoretical construction under scrutiny, as well as point out the problems associated with its incorporation in opinions and academic writings of justices of the Brazilian Supreme Court. We argue that the argument is flawed due to an exaggerated belief in the deliberative potential of courts, the absence of approximation mechanisms between would-be representatives and their constituents, and the absence of effective accountability mechanisms. Besides, we point out how the thesis can be used as a rhetoric tool for shielding politically salient and controversial decisions. We thus reinforce the elitist character of this attempt, which exacerbates the isolation of the court from its represented and establishes a growing detachment from the inherently democratic core of sovereignty as a popular exercise of political power.