This 16th of November, 2017 the Brazilian Studies Association welcomed Luis Roberto Barroso (Justice at the Brazilian Supreme Court) and Mark Tushnet (William Nelson Cromwell Professor of Law at Harvard Law School) for a conversation on the roles of supreme courts in contemporary democracies.
We began with Justice Barroso’s account of the rise of the Judiciary Power after World War II as a protector of fundamental rights and democracy, as enhanced by the modern disillusionment of societies with majoritarian politics and its inefficiency in resolving highly controversial subjects. It is a trait of our times that life has become increasingly more judicialized (there are currently 70 million ongoing law suits in Brazil alone), leaving constitutional courts with the burden of writing the last chapter in the chain novel of political, social, economic and ethical matters.
In Both Brazil and the United States, legislatures have often failed to address issues such as abortion, same-sex marriage, assisted suicide, embryonic cells research, and so on. As a result, the work of constitutional courts in ensuring the rule of the majority, protecting the rules of the democratic game and enforcing fundamental rights entered a place where the boundaries separating law and politics are not so clearly defined, although still existent.
Discharging its duties in such a complex setting, constitutional courts end up playing three principal roles as political institution within a democratic form of government. The first of them is the countermajoritarian role, which is basically comprised of the invalidation of laws enacted by elected bodies of government. Justice Barroso argued this is a role very rarely performed, which indicates that supreme courts actually tend to align themselves with the majorities in a given time.
Secondly, there is the representative role, in which courts grant social demands that have not been timely addressed by legislatures. Maybe the expression countermajoritarian is not proper in this context, since there will be times in which the courts act in a way that is more consistent with the will of the people. In these cases, the action of the courts would be better defined by the expressions counter legislative, or counter congressional. In the United States, a good example would be Griswold v. Connecticut, where it is reasonable to assume that, at the hight of the sexual revolution and the affirmation of the feminist movement, the prohibition of use of contraceptives even by married couples did not correspond to the majority of the population’s view. In Brazil, examples involve the supreme court-sponsored ban on the appointment of relatives to public positions and invalidation of the law governing corruption-friendly electoral financing.
The last role is the enlightened one. Justice Barroso stressed its exceptionality, in light of the risk of authoritarian exercise of power. The enlightened role demands great parsimony, and even greater caution. In this situations, the courts act against the will of the legislature without public support, once its actions also run afoul of the majoritarian interests in society. This sort of extreme situation would only be justified while protecting fundamental rights of minorities and pushing History forward, such as observed in the performance of the United States Supreme Court in matters of desegregation of public schools (Brown v. Board of Education), miscegenation laws (Loving v. Virginia), right to abortion in the first trimester (Roe. v. Wade), and validity of same-sex marriage (Obergefell v. Hodges).
Summing up, Justice Barroso stressed that constitutional Courts should not be too shy nor too arrogant in their roles. Democracy in the overly complex world that we currently live in demands of public agents great sensibility and, where needed, creativity to make sure our fundamental commitments are upheld through time.