'Faithful Servants of the Regime' - The Brazilian Constitutional Court’s Role under the 1988 Constitution
29 Pages Posted: 13 Aug 2009 Last revised: 6 Oct 2009
Date Written: 2009
Latin America has witnessed an undeniable increase in the importance of courts in policy debates, in debates about the rights of citizens and the duties of states, and in controversies across branches of government. This raises the question, whose rights and interests are these courts protecting? Are they perhaps newly empowered by the need to police a more democratic separation of powers? Who benefits from the increasing intervention of courts in politics? Are courts acting autonomously, or as agents of the executive, the legislature, or someone else? In this paper I propose a theoretical and conceptual scheme for explaining the capacity and inclination of courts to effectively police the separation of powers and enforce the rights of citizens. The framework takes into account both the institutional design of courts and their political context and seeks to explain which issues and whose interests the courts will protect with special solicitude. By way of illustrating its utility, I apply the scheme to the STF, the highest constitutional court in Brazil.
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