ABUSIVE JUDICIAL REVIEW UPSIDE DOWN: abusive constitutional borrowing by executive officials against courts

Abusive judicial review entails incidents where courts use judicial review powers to overstep their mandate in a move against democracy. I propose a new use for the term associated with the role of political officials that activate courts rather than judicial decision-making itself. Officials with legal standing make use of this power as a position-taking endeavor both (i) to gain public support, and, (ii) to move public opinion against the court, affecting its perceived legitimacy in an attempt to weaken democratic institutions. These officials do not act upon any legitimate expectation of qualified constitutional deliberations, borrowing a traditional device consolidated in constitutional democracies to thwart democratic institutions and cause political instability. I address this form of borrowing as abusive judicial review upside down, illustrating it with the case of constitutional claims made by Bolsonaro’s government before the Brazilian Supreme Court during the COVID-19 crisis.