Judicial activism and the separation of powers: a critical analysis of the Brazilian Federal Supreme Court’s role

Abstract

This study critically examines the phenomenon of judicial activism in Brazil, with particular emphasis on the role of the Brazilian Federal Supreme Court (STF) and its implications for the constitutional principle of the separation of powers. It begins with a historical and theoretical reconstruction of the division of governmental powers, tracing its development from Montesquieu’s formulation to contemporary constitutionalism, while highlighting the importance of judicial self-restraint in preserving the institutional balance among the branches of government. Drawing on bibliographic and documentary research, the study distinguishes judicialization of politics from judicial activism and analyzes the STF’s increasingly prominent role in political, social, and institutional matters. Through the examination of landmark cases, including the Fake News Inquiry and ADO 26, the study identifies the principal concerns associated with judicial activism, namely the erosion of the separation of powers, democratic deficit, legal uncertainty, and the concentration of authority within the Court. The study concludes that clearly defined institutional limits on constitutional adjudication are essential to reconcile the protection of fundamental rights with the preservation of the constitutional allocation of powers and democratic stability.