Responsability and legitimacy

a reading on the politicity of judicial decisions

Abstract

This work aims to analyze the political nature of judicial decisions in contemporary democracies, seeking to demonstrate the inevitability of judges making political judgments when deciding controversial cases, to understand whether such decisions are compatible with a democratic system, and to grasp the political responsibility that courts and their judges have within a democratic state. The research is justified by the importance of the debate on the judicialization of politics and the political role of supreme courts in the global public and media discourse, including accusations of "usurping" the powers of other branches of government by the judiciary, a discussion that has been particularly prominent in Brazil due to the increasingly activist role of the Supreme Federal Court (STF) in controversial issues such as second-instance imprisonment and drug decriminalization. Methodologically and in terms of theoretical framework: (i) first, it starts with the question of "what role should judges' political convictions play in their decision-making process?" and analyzes the main proposals for politically neutral interpretation, with a focus on Ronald Dworkin's arguments in demystifying this supposed neutrality; (ii) afterwards, it examines the compatibility of political judicial decisions with democracy through the paradigmatic debate between the mentioned author and Jeremy Waldron regarding the legitimacy of the judicial review institution, identifying their central disagreement about the foundation of democracy; (iii) Finally, the above is used to conclude what the political responsibility of judges in a democracy is and what it requires in their performance.