Politics behind the vail of law: how fundamental rights discourse can hide excesses in judicial review. An empirical study from Brazil.

In the aftermath of the military dictatorship, the constituents for the Brazilian Constitution had the mission of compensating its citizens for the excesses of power endured. Thus, the current charter promises to uphold every fundamental right, from health to recreation. And guarantees it giving individuals ample access to courts via judicial review. Brazil has adopted a hybrid model of judicial review, allowing individual courts and judges to exercise concrete review (inter parte consequences) and the Supreme Court to conduct abstract control (erga omnes results). In this way, the long list of fundamental rights protections is used – and abused – every day in Brazilian judicial forums.
This paper seeks to explore how judicial review can be overused, giving judges the power to exercise politics behind the vail of the law. It does so through an empirical study which compares judicial reasoning taken from decisions to judicial motivation observed from semi-structured interviews.