A JURISDIÇÃO CONSTITUCIONAL E A EFETIVAÇÃO DOS DIREITOS FUNDAMENTAIS: ANÁLISE DA FUNÇÃO CONTRAMAJORITÁRIA DAS CORTES CONSTITUCIONAIS E BACKLASH

Abstract

The global expansion of the role of the judiciary and the influence of public opinion on its decisions are increasingly frequent, particularly when referred to activists and guarantors, in favor of the defense of the fundamental rights of minorities, that is, society has centralized the idea that the judicial system is a decisive factor in collective life. The world watched in June 2022 as the United States Supreme Court overturned one of the country's most critical decisions: Roe v. Wade. The decision in Dobbs, seen as a step backward, differs from the notion solidified around 50 years ago, in the sense that abortion is a woman's constitutional right and, as such, cannot constitute a crime. The decision sparked a tremendous backlash and became a rallying cry for political campaigns. In Brazil, this experience of strong social reactions to judicial decisions has taken on a disproportionate dimension in recent years, with acts of violence, vandalism and non-compliance with court orders, generating the backlash effect, and legislative changes as a form of political power combating judicial protagonism. Beginning with the construction of modern Brazilian constitutionalism, which did not accompany the achievements of the nineteenth and twentieth centuries, the research conducts a historical search to highlight the structural difficulties in the construction of Brazilian constitutionalism, of Romanist tradition of private law. The study seeks to determine if, in a plural context of societal asymmetry, counter-majoritarian court rulings may advance democracy or cause a backlash impact sufficient to influence legislative failures. Tracing the country's difficult path toward effective recognition of the Constitution for the realization and defense of minorities' fundamental rights, the research seeks to determine whether or not the independence of judicial decisions is jeopardized when public opinion strongly opposes the content of these decisions. The research's specific goal is to examine the historical formation of current constitutionalism, from antiquity to the new constitutionalism, starting with Ronald Dworkin's theory of justice. This framework presents a moral reading of the Constitution in which Constitutional Courts must be seen as appropriate place for social transformations – a forum of principles – and the backlash effect as a negative factor, from a current of authoritarian populism. The findings show that the support of democracy requires that judges should not be guided by public opinion, nor walk hand in hand with populism. The backlash is investigated as an act of resistance by the conservative segment of society against progressive legal rulings made by the judiciary, in the concept of constitutional law, understood as a reaction of public opinion to political controversies and, therefore, a natural consequence of the discussions held in a Democratic State of Law founded on pluralism of ideas, seen by many as a threat to the counter-majority function of the Constitutional Courts. The study is qualitative in character, employing a deductive tec.