Ativismo judicial e limites da jurisdição constitucional: o caso da ADPF 442

Abstract

With modern constitutionalism, the theory of tripartite separation of powers emerged as proposed by Montesquieu, who in Brazil is considered a stony clause. In the clash of who should be the guardian of the Constitutional, the Brazilian state consecrated the Supreme Court this task. It happens that, over the years, activist behaviors came to be realized by the Brazilian Court, having acted, in several situations, like positive legislator. It aims, therefore, to observe how judicial activism is linked to the invasion of the Judiciary, especially the Federal Supreme Court, in the other powers. Emphasis is placed on these behaviors, which put democracy at risk. It also seeks to analyze the request formulated by the Socialism and Freedom Party in the allegation of compliance with fundamental precept (442), which requires the partial reception of articles 124 and 126 of the Penal Code, aiming at legalizing voluntary abortion until the 12th week of gestation. The request formulated incurs the concern of the Judiciary to act in an activist way, violating the theory of the separation of the rotten and invading the sphere of the Legislative Power. Thus, it is intended to expose the limits of the activity of the Court in the context of judging this action.