Ativismo judicial: atuação do supremo tribunal federal diante da “omissão” do legislador

Abstract

Judicial activism is an attempt by the Judiciary to have a broader and more intense participation in the achievement of constitutional purposes, with greater interference in the scope of action of other powers. The performance of our Supreme Court, by "legislating" on a given matter, directly interferes in the Brazilian legal system and in the separation of powers, considering that this is an atypical function of the Judiciary. In addition to a manifestation of judicial activism, such action must be analyzed from the point of view of its influence on society in general, considering that the STF has been assuming an enormous political and social projection in recent years, when deciding on issues polemic and central to the life of the country, such action being influenced by the media and political repercussion that its decisions started to have. It is important, therefore, a critical analysis of both the omission of the Legislative Power, by not regulating matters of great social relevance (which generates the need for action by the Judiciary) and the performance of the Judiciary Power (projecting itself in the sphere of actions of the Legislative), so that, based on this analysis, it is possible to explain how the social reality and the organization of the State are affected. This research seeks, in general, to analyze the performance of the STF, based on institutes such as judicial activism and separation of powers. The specific objectives are: to explain what led the judiciary to assume such a posture and assume the atypical function of legislating; explain the legal uncertainty that can be caused by this action; and enumerate the social consequences arising from such decisions. It is a bibliographic and exploratory research. The applied methods of approach were hypothetical-deductive and dialectical. The procedural methods were descriptive.