Ativismo judicial no Supremo Tribunal Federal: análise da jurisprudência sobre execução da pena a partir da decisão penal condenatória de segunda instância

Abstract

The article seeks to answer the following question: keeping in mind the dimensions of judicial activism proposed by Marshall, and considering the jurisprudence of the Federal Supreme Court regarding the execution of the sentence based on the second instance criminal conviction decision, it can be stated that there was, by the Brazilian Supreme Court, the practice of judicial activism? The concepts of judicial activism and judicialization of politics are scrutinized and confronted with each other, revealing, as a result, the importance for Law of their adequate theoretical delimitation. The research uses an analytical, qualitative, descriptive, exploratory and documentary approach to, through the definition of judicial activism proposed by Marshall, demonstrate the existence (or inexistence) of judicial activism in the STF judgments concerning the early execution of the sentence. It was discovered that the jurisprudence relating to the execution of the sentence is subdivided into four historical periods under the auspices of the 1988 constitutional regime, namely: 1988 to 2009; 2009 to 2016; 2016 to 2019 and 2019 to the present day. The research revealed the existence of three types of judicial activism conceived by Marshall in the judicial decisions under study: partisan, precedent-setting and counter-majoritarian. Additionally, it was noticed in the rulings studied the materialization of concepts suggested by relevant legal authors, namely: synchronicity, fulanization of judgments, selective use of subsumption, selective constitutionalism, ministocracy and internal countermajoritarianism.