JURISDIÇÃO CONSTITUCIONAL RESILIENTE: A EXPERIÊNCIA BRASILEIRA

Abstract

Constitutional jurisdiction has proven its resilience from an early age. In the United States, when President Thomas Jefferson said he would not comply with a possible court order forcing him to swear in a judge appointed by his predecessor and opponent, John Adams, the Supreme Court in Marbury v. Madison, 1803, avoided direct confrontation, but did not leave it at that. The price was proclaiming itself as competent to declare laws unconstitutional, in a pioneering exercise of institutional self-defense. It became, with such measure, the most powerful Supreme Court in the world. Germany, in turn, founded its current Constitutional Court to help clean up the material and immaterial ruins left by Nazism. Born to resist. In South Africa, the late President Nelson Mandela created the Constitutional Court which mission is to resist to any supremacist or revanchist attempts similar to those that forged apartheid. As this text was being completed, tens of thousands of people were protesting in the streets of Tel Aviv, Israel, against a proposed Judicial Reform that would remove the power to say the last word on legal matters from the Supreme Court and would hand it over to the Knesset, the Israeli parliament. There too constitutional jurisdiction has been resilient, but for how long? The Brazilian Constitutional State, however, had not yet shown all this resilient spirit. But now, having the Supreme Federal Court (STF) survived the four years of harsh attacks suffered during the administration of former President Jair Bolsonaro (2019-2022), the Court shows the world that what happened in countries like Venezuela, Guatemala, Poland and Hungary – whose governments have greatly undermined judicial independence – is perhaps an accident, not necessarily fate. What are these mechanisms capable of providing, in the Brazilian experience, constitutional jurisdiction with greater resilience in the face of extreme crises? The present text is dedicated to identifying, studying, categorizing them and concluding about the possibility of their domestic institutionalization, as well as, when extreme crises occur, the possibility of their use by different jurisdictions around the world.