Ativismo judicial e o supremo tribunal federal: a atuação da corte no julgamento da ADO 26 e MI 4733

Abstract

This undergraduate thesis has as object of study the trial of ADO 26 and MI 4733, in which the Brazilian Court decided for the criminalization of homotransphobic conduct. The object will be analyzed from the perspective of the phenomenon of judicial activism. Judicial activism can be understood as the exercise of jurisdictional function beyond the limits imposed by the legal system, going beyond the threshold of the separation of powers. In this sense, an analysis of the votes of the ministers issued at the decision of ADO 26 and MI4733 was conducted within the scope of this monograph, seeking to understand to what extent the extensive interpretation of the Racism Law (Law No. 7,716 / 89), to frame racism, such as discrimination against the LGBT + population, goes beyond the typical functions of the judiciary, with the Supreme Court acting in an “activist” manner. To this end, the phenomenon of activism will be analyzed in the context of the Brazilian constitutional historical context and the use of judicial instruments to control constitutionality, especially on omissive acts of the Legislative Power. Thus, the general objective is to discuss the limits of the Supreme Court's performance in the enforcement of fundamental rights through the case study of the criminalization of homotransphobia. The specific objectives are to delimit and conceptualize the phenomenon of judicial activism; contextualize the scenario of Brazilian constitutionalism and the problematic of the governing constitution; explain the post CF / 88 judicialization; address constitutionality control by omission of the legislature.