A construção do judiciário, o capital institucional e a quota de decisões contramajoritárias

Abstract

This dissertation seeks to propose a way of analyzing judicial review decisions, considering the phenomenon of exhaustible institutional capital. Looking positive accounts of judicial power, we see how it is, as Montesquieu, Hamilton and others saw it, the least Dangerous Branch and cannot fulfill the normative promises granted by Normative Theory. However, several theories explain reasons why political actors might want to grant power to the Judiciary. Judicial empowerment thus creates a new equilibrium, in which the Judiciary can no longer be the weakest Department. In between those extremes juristocracy or irrelevance lies the amount of institutional capital granted to the Judiciary. With that in mind, we seek to understand the main causes that expend or restore this political capital and reach a conclusion: judicial decisions are the main reason why diffuse support can vary. Therefore we propose two categories of judicial decisions that will help us understand this variation, so we can finally move towards integrating law and politics in a more productive way.