Cruzando o rubicão jurisdicional: a atuação política do STF à luz da ADO/26

Abstract

This course conclusion work aims to discuss the political role of the Federal Supreme Court (STF), in light of the arguments listed in the judgment of the Direct Action of Unconstitutionality by Omission (ADO) no. 26/DF. This is because, in this STF decision, the crime of racism was equated with homotransphobia, aiming to overcome an unconstitutional omission on the part of the National Congress, which did not implement the criminalization order contained in article 5, XLI, of the 1988 Federal Constitution. In this sense, the way to fill the so-called legislative gaps raises controversies about the limits of the constitutional court's actions, questioning its role and impact on relations between the powers. Therefore, this study, using exploratory methodology, aims to understand how the Court's interventions affect relations between powers, shape legislative development and contribute to the effectiveness of constitutional norms. The chapters are dedicated to exploring the role of the STF in the legal system, the debate about its actions to fill legislative gaps, and the complete analysis of the ADO 26 judgment, seeking to understand the reasons behind the decision and its implications in the legal context- Brazilian politician. Therefore, it was concluded that the “enlightenment role” played by the Court, based on political arguments, relativized the principle of legality and the separation of powers. Furthermore, it was found that this stance could undermine the STF's own countermajoritarian function, as, by acting in an interventionist manner, it generated a strong reaction from the National Congress, which aims to limit its powers. Finally, the deterioration of its image among the population was noticed, which compromises the notion that the excellent praetorium can induce social changes.