Entre decisões e reações: diálogos (e embates) institucionais entre Supremo Tribunal Federal e Congresso Nacional

Abstract

The present work aims to verify the potential of institutional dialogue between the National Congress and the Federal Supreme Court (STF), as well as to investigate how the reactions of the latter occur to its decisions. In order to do so, it was initially attempted to demonstrate that the theory of institutional dialogues functions as an alternative to the theory of judicial and parliamentary supremacies. After reviewing the literature about the subject, a case study was made based on decisions of the Supreme Court in the concentrated judicial review and the various legislative reactions to these decisions. The cases were chosen according to the following cumulative criteria: the social relevance, the period and the previous treatment under the dialogic persectiva. The first means to say that the matters dealt with by the Court are of deep interest to the society or its segments, objectively expressed by the presence of amicus curiae in the objective process and / or by the resonance of the decision in the press and public opinion. These elements demonstrate that the issues dealt with in the judicial arena could of course be addressed by the political powers. On the second criterion, the idea was to choose cases that have occurred in periods that have elapsed since the enactment of the 1988 Constitution. For example, while decisions were taken in the early 1990s, there were cases that began in the 2000s and 2010s. Concerning the third, there was a concern to select those cases that had already been studied by other authors under the institutional dialogues. It has come to the conclusion that it is possible for the National Congress to react naturally to decisions of the STF. These reactions may serve an intention to overcome the Court's decision or to simply conform to it, either by means of a bill that can be approved by a simple or absolute majority, or by means of a proposed amendment to the Constitution, which can only be approved through a qualified quorum. The possible motives behind legislative reactions were also discussed. Parliament may face exogenous pressure from corporate groups or even public opinion when it comes to a decision of the Supreme Court, but may also act in its own interests. The research also looked into the meaning of a possible silence of the legislature before a judicial decision. In the first place, it was a question of conceiving which concepts of legislative inertia could be used. There were two possibilities: the absence of any legislative proposal and the lack of approval of any proposal. Some probabilities were presented about the respective intentions of the legislator with each of them. The lack of a proposal would be an act of inertia whose meaning would be closer to being a sign of deference from the Legislature to the choice of the Judiciary. On the other hand, the lack of approval of some matter in the process would most probably mean an act of indifference to the dialogue, especially when the decision is taken in the writ of injunction (MI) or Direct Action of Unconstitutionality by Default (ADO).