O Ativismo Judicial em sede de STF: análise dos casos da ADC 43/44 e da ADO 26/DF e MI 4733/DF

Abstract

This article has the power to investigate the practice of judicial activism of the Federal Supreme Court and the consequent legislative character that permeates the activity of this Court in the country. To do so, a general analysis of the Brazilian institutional conjuncture was made, discussing and defining about the Tripartition of Powers, professional competences and principles inherent to the Powers of Administration. It examined and conceptualized the control of constitutionality in its variations: diffuse and concentrated. Then, it discusses the judicial activism of the Judiciary and its reflexes in the political structure of the country, considering the field of action and the limits imposed by the Constitution on this phenomenon. After that, it goes through two final judgments of the Supreme, namely the Declaratory Actions of Constitutionality 43 and 44, in addition to the Direct Action of Unconstitutionality by omission 26/DF and the Writ of Injunction 4733/DF with a focus on the legitimacy of these cases as instruments of general repercussion and innovations to the legal system. Subsequently, the doctrinal position on the subject is perceived, seeking insights and understandings that help to categorize jurisprudential normative production in its necessary or consequential character. Finally, the analysis of the need to subject judicial activism to the constitutional perception and the system of checks and balances of the administration was analyzed