Activism or Self-restrain: the role of Courts in Democratic Transitions and the case of Brazil

Courts are notoriously influential in the consolidation of new constitutional regimes. However, their expected behavior changes depending on the nature of the transition. Negotiated elite transitions have Courts assume an activist posture early on, when there is a political legitimacy vacuum. Revolutionary transitions see Courts apply self-restrain in early years of a strong, legitimized political class. In all scenarios, Courts are expected to be more activist in the presence of a legitimacy vacuum. The Brazilian 1988 transition into democracy challenges this pattern. While there is an ongoing debate on the nature of the transition as negotiated or revolutionary, the Supreme Court practiced fierce self-restrain in the early days of slight political legitimacy. This paper analyzes the causes and diagnostics of the double-edged political vacuum Brazil experienced in the first phase of its New Republic, and what it can teach about the role of Courts democratic transitions.