Case selection in the Brazilian Supreme Federal Court: a comparative approach

Brazil has a long standing tradition of supremacy of its written Constitution and of judicial review. Starting with the first republican Constitution of 1891, all Brazilian Constitutions have given the Judiciary the power to review federal or state laws and acts, and to declare them void when in conflict with any constitutional provision.1 By this means, the Constitution is made the paramount norm in the Brazilian legal system, and prevails over any federal or state statute or act in the country.

The century-old practice of judicial review in Brazil, however, is a history of crisis. The Brazilian Supreme Federal Court’s docket has been flooded with cases since the early decades of the 20th Century, and the number of cases increased greatly after the Constitution of 1988 was promulgated. This increase was particularly sharp in the number of appeals to the Court in the diffuse system of judicial review – the extraordinary appeals. From 1990 until 1999 the Court decided 136,903 such appeals, averaging 13,690 extraordinary appeals per year.2 If the Court’s original jurisdiction is
also taken into account, the resulting workload represents an excessive burden that impairs the Court’s ability to perform its essential duty to safeguard the Constitution.

The purpose of this paper is to examine the Brazilian diffuse judicial review in a comparative perspective, to argue that Brazil incorporated the concept of diffuse judicial review from the American constitutional tradition disregarding key mechanisms available to the United States Supreme Court, such as the writ of certiorari and stare decisis. The result was both the lack of instruments of case selection and the need to decide the same constitutional issues repetitively, which eventually flooded the Brazilian Supreme Court’s docket and generated a massive crisis in Brazil’s system of constitutional adjudication. Some aspects of judicial review in the United States will be highlighted, and previous attempts to respond to the Supreme Federal Court crisis in Brazil will be analyzed, in order to propose possible solutions to this problem. The practice of the German Constitutional Court will also be used as a comparative resource, in order to address some of the issues involved in case selection and repetitive decisions both from a common law and Romano-Germanic perspective.

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