Transformative constitutionalism, institutional failure, and judicial populism

The traditional debate on judicial activism focuses on what judges do with their power; in contrast, this paper focus on how they talk about their role (i) under a constitution that is perceived as having “transformative” ambitions, and (ii) in context of rising populist politics. While we tend to think of courts as either victims of or obstacles to populist politicians, recent constitutional developments in Brazil suggest a different possibility: constitutional judges can seize an anti-establishment political momentum to present themselves as representing the true interests of the People. By focusing on the failure of representative institutions, certain varieties of discourse on transformative constitutionalism might have actually empowered judges to adopt a populist vocabulary themselves and and present themselves as speaking for the people.