O enigma da independência judicial: uma análise à luz da história institucional do Supremo Tribunal Federal

• Ano de defesa: 2016
• Autor(a) principal: Pereira, Micheli
• Orientador(a): Pessanha, Rodrigo Brandão Viveiros
• Banca de defesa: Pereira, Jane Reis Gonçalves , Campos, Carlos Alexandre de Azevedo , Cruz, Alvaro Ricardo de Souza , Barbosa, Claudia Maria
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade do Estado do Rio de Janeiro
• Programa de Pós-Graduação: Programa de Pós-Graduação em Direito
• Departamento: Centro de Ciências Sociais::Faculdade de Direito
• País: BR
• Palavras-chave em Português: Independência judicial; Supremo Tribunal Federal; Garantias formais à independência judicial
• Palavras-chave em Inglês: Judicial independence; Federal Supreme Court; Formal guarantees of judicial independence
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO
• Link de acesso: http://www.bdtd.uerj.br/handle/1/9338

Why do political actors respect the independence of Federal Supreme Court (STF) and its members? Or why do they not? Or which are the factors that explain its independence in practice? Those are the main questions guiding this thesis. The institutional history of STF unveils that, at certain times, powerful political actors respected the institution independence (and of its members) and, at other moments, they did not. This evidence by itself suggests that the respect to the independence of the Court (and its members) has been changing over time. Even in the period after 1988, when the political actors took a position of respect in general, keeping its independence is still a challenge. Historically, the traditional constitutional doctrine has explained respect to judicial independence, including of STF (and of its ministers) by means of formal guarantees. Since their emergence, such safeguards have had the role to isolate the courts (and its members) from political sore points in order to create a kind of barrier against hostile political actions and, thus, guarantee the judicial independence in practice. However, the institutional history of STF shows that such guarantees have not been able to prevent/block hostile political actions throughout time. In addition, these guarantees do not prevent/block the use of mechanisms by political actors to confront the independence of STF (and of its members) after 1988. This study basically tries to demonstrate that the action of political actors of respecting or not the independence of STF (and of its members) is connected to the questions influenced by the political system, the costs of judicial actions, political power fragmentation and public support to the Court. The main aim of the thesis is to demonstrate that the independence of STF (and of its members) is bound to external factors not attached to law and these formal guarantees are not sufficient to explain/ensure it.