A razão sem voto: o Supremo Tribunal Federal e o governo da maioria

Paper discusses the duality of perspectives between the representative role of supreme courts, their enlightenment function and the situations in which they can legitimately push the story and the representative role of the Legislature in the consecration of rights and achievements. To construct the argument, the historical processes that led to the rise of the Judiciary in the world and in Brazil, the phenomenon of indeterminacy of law and judicial discretion, as well as the extrapolation of purely countermajority function of constitutional courts are analyzed. The conclusion is quite simple and easily demonstrable, although counteract to some extent the conventional wisdom: in some scenarios, due to multiple circumstances that paralyze the majoritarian political process, it is up to the Supreme Court to ensure majority rule and the equal dignity of all citizens. The reasoning behind this premise is either difficult to articulate: the political majority, led by elected representatives, are a vital component to democracy. Beyond this purely formal aspect, she has a substantive dimension, which encompasses the preservation of fundamental rights and values. To these two dimensions - formal and substantive - also adds to a deliberative dimension, made of public debate, argument and persuasion. The contemporary democracy therefore requires votes, rights and reasons.