THE JUDICIAL MINIMALISM OF CASS SUNSTEIN AND A RESOLUTION OF FEDERAL SENATE IN CONSTITUTIONALITY CONTROL

JUDICIAL ATIVISM AND DEMOCRACY LEGITIMACY

Abstract

The present article aims to explore a judicial stance referred to as judicial minimalism, presenting it as a democratic path of jurisprudential action that gathers elements capable of rightfully articulating the distinct roles of the Judiciary and Legislative powers. It signs out that, as a “procedure”, minimalism suggests that, in controversial cases, the judges should not pronounce on matters that are not essencial to resolve the specific case, recomending that the argumentation leading towards the decision should be narrow and superficial, maintaining the divergences about phylosophical and/or morally controversial reasons about specific cases. It also highlights that, as “substance”, minimalism seeks to promote democratic deliberations in the responsible political institutions. Finally, it enlightens tbthe theme by analysing, under the optic of the judicial minimalism, the Constitutional Reclamation no 4335, from which emerged the discussion about the Federal Senate’s Resolution in the scope of the constitutionality control.