Judicial Independence in the Face of Intergovernmental Backlash: The Dilemmas in Brazil and Responses from Latin American Transformative Constitutionalism

The paper argues that the jurisprudence of the Brazilian Supreme Court on judicial independence can be divided into three periods: (i) the authoritarian period, of explicit attacks on the Court; (ii) the democratic period, of institutional adjustments of the Judiciary; (iii) the current period, of democratic ambiguity, in which threats to judicial independence are present, although they are not always evident. Examples of these threats are suggestions of reprisals or of open non-compliance of the Brazilian Court´s decisions by the other branches of government. In these situations, the Brazilian Court is faced with the dilemma of choosing between preserving its independence (and delivering a decision that could weaken its authority) or stepping back and bowing to avoid conflict. The work presents examples of such cases in the Brazilian jurisprudence and seeks to identify what Latin American Transformative Constitutionalism has to say on this issue.