OUT OF TUNE: The Brazilian Supreme Court and Democratic Erosion

Liberal and democratic constitutionalism is usually taken for granted. Nevertheless, the “constitutional mold” can be kept untouched while “liberal constitutional content” is drained out to make room for authoritarian rule. This process is known as democratic backsliding. But how can a constitutional court respond to an undemocratic agenda? The answer may rely upon one of the functions of judicial deferral: to avoid a head-on collision between the court and other political actors while the judiciary entrenches itself as an institution. Because constitutional retrogression presents itself as a steady corrosion of the main pillars of liberal democracy, courts must fine-tune their judicial responses to the pace of events that can lead to democratic backsliding. When it comes to the Brazilian Supreme Court two obstacles emerge: the Court lacks an institutional identity and still needs to learn how to embrace its political duties through a pragmatic approach to constitutional law