THE COURT AS AN INTEREST GROUP: When constitutional courts lobby constitution-making and constitutional reform processes

Scholarship recognizes that courts make constitutional change through judicial review. On the other hand, when constitution-making and constitutional reform processes develop outside courts, judges are depicted as mere spectators. I propose a new theoretical approach to address the role of courts in these cases. I study the Brazilian Supreme Court as an interest group during the constitutional assembly of the 1988 Constitution. I hypothesize that judges try to drive the result of decision-making processes according to their interests. In order to do so, I classify the Court’s goals as (i) institutional preservation, (ii) corporatist interests, and (iii) power expansion. I also explore the direct and indirect tools of Court lobbying. Surprisingly, the constitution-making process in Brazil shows that the Court may be reticent to defend power expansion provisions due to other concerns. My objective is to expand the agenda of examining the role of constitutional judges beyond courts.