Mutação constitucional e a ampliação de poderes do (e pelo) poder judiciário: reflexões acerca dos votos dos ministros Gilmar Mendes e Eros Grau na RCL nº 43351

Abstract

It is intended, from questioning the constitutional mutation of art. 52, X, of the Federal Constitution, to verify the legitimacy of the votes of the judges Gilmar Mendes and Eros Grau, Ministers of the Supreme Court. Based on the discursive theory of Law, we seek to demonstrate some harmful consequences of this attempt to introduce a new model of judicial review, which increases the powers of the Court that would apply the theory. Along the way, the premises of a democratic legal state paradigm were set, which includes the study of legitimacy of Law from the relationship between popular sovereignty and fundamental rights. We were able to reach the following conclusion: the constitutional mutation of the judicial review violates the legal autonomy of citizens, the Supreme Court is identified as the sole owner of the constitutional subject and the citizens were transformed into clients of the authoritarian thinking of a few judges.