Diálogos institucionais e supremacia judicial no Brasil: breve análise da aplicabilidade do aconselhamento judicial, da técnica do segundo olhar e do poder de não decidir

Abstract

The present work intends to investigate the applicability of normative theories of institutional dialogue in Brazil and the exercise of the power not to decide. This objective is based on the long and endless debates involved in the exercise of constitutionality control. On the one hand, the aim is to maintain the order required by the original constituent power, which outlined the fundamental rights and outlined the institutional design, distributing powers and competencies. On the other hand, the limits of judicial review are questioned, because, to a greater or lesser extent, it would contradict the majority will, reflected in the political process. In Brazil, the divergence is even more intense, as the Federal Supreme Court, after the 1988 Constitution, rose considerably and it has not been rare for a Court to assume the role of Agora, to deliberate on issues of a moral, evaluative or highly complex technique. At this point, the question arises whether the Judiciary would be the only one to exercise constitutional interpretation or whether it would compete with other equally legitimate entities. This work seeks to better understand this issue. They gain importance, in this context, as theories of institutional dialogue. They aim to overcome the counter-majoritarian difficulty of judicial review, overcoming the idea that a single body should dictate constitutional interpretation, in favor of cooperation and dialogue between the powers. The methodology adopted is based on a bibliographical survey and literature review in the areas of Constitutional Law, Civil Procedure and Philosophy of Law, as well as documentary analysis, notably of legal diplomas and harmful legislation. In the course of the work, it was found that dialogue theories can be divided into two large sets: theories of the judicial method and structural theories of dialogue. This research, however, outlined the focus on the former. This group includes judicial counseling; the rules centered on the procedure (with emphasis on the second look technique); and judicial minimalism. Analyzing them, it is concluded that, in Brazilian law, there are ways to promote counseling, but it is not necessary, through it, cooperation between the powers; and that recent doctrinal contributions postulate that general repercussion would be the apparently appropriate tool to operate judicial minimalism and the second look technique in diffuse control. It should be noted, however, that some questions remain and some of them can only be clarified with the application of the concepts, which constitutes a challenge for the future.