But judicial activism does not only happen in Brazil. Countries such as Canada, Colombia and the United States have also had activist decisions handed down by their Supreme Courts. The Supreme Court of Canada declared the issue of the United States conducting missile tests on Canadian soil unconstitutional. The Colombian Court ruled on the constitutionality of the popular consultation on President Álvaro Uribe's third term, and more recently, in 2020, it was the US Supreme Court that ruled on the rejection of a new election after Donald Trump's defeat.
And although judicial activism often moves agendas that require greater urgency for decision-making, ideally judges should not be responsible for deciding or interfering in the regulation of issues addressed by the branches of government. The imbalance between the three branches of government can be seen as a weakness in democracies.
In a lecture given at the 1st Congress on Legislative Law, Minister latvia mobile database Luís Roberto Barroso highlighted the importance of distinguishing judicial activism from judicialization: “Society attributes activism to the STF because they make decisions based on the Constitution. Judicialization refers to cases that reach the Supreme Court and must be judged in accordance with the Constitution. Activism refers to attitudes that were not foreseen by the constituent or legislator, but that need to be equalized by the STF.”
In practice, the scenario of judicialization occurs when decisions are forwarded to the Judiciary by the Legislative and Executive Branches as a way of obtaining a judicial resolution for a political issue. In Brazil, there is often an excess of politically motivated lawsuits sent to the Judiciary, because in the conventional system there is a certain ease in accessing the Supreme Court, since it is also up to the judges of law to act as judges of constitutionality.
Recently, with the aim of strengthening the independence of the judiciary, the Constitution and the Democratic Rule of Law, the Brazilian Magistrates Association (AMB) released a letter asking the next president elected in the 2022 election to discourage the judicialization of politics. According to the document, “discouraging judicialization should serve as a way to prioritize the processes of the Executive and Legislative branches to seek solutions to conflicts and disagreements.”
Therefore, the judicialization of politics should not be seen as a solution for the defense of social interests so that the democratic system itself is not distorted, in such a way that the Supreme Court should not act directly in the construction of public policies .