THE COVERT FILTER OF GENERAL REPERCUSSION: HOW THE OBSCURENESS OF RELEVANCE-BASED JUDGMENTS CONTRIBUTES TO THE BRAZILIAN SUPREME COURT’S CRISIS

Abstract

The study intends to demonstrate that the Brazilian Federal Supreme Court (STF) uses a kind of “covert relevance filter”, by which the Justices, in individual decisions, reject cases because they are not considered important, although not openly admitting it, nor using the formal mechanisms designed for that purpose. This is due to two basic reasons: (a) the understanding that the lack of general repercussion refers to abstract legal questions, not concrete cases; and (b) the high quorum of two thirds to formally deny general repercussion. Thus, the Court obscures the distinction between the constitutional character of the dispute and its relevance. This generates inconsistencies demonstrable by the observation that several matters repeatedly considered as non constitutional turn out to be seen as constitutional, even without any normative changes, when the Justices, for some reason, begin to see them as relevant. That way of working lies at the root of the Court’s functionality crisis: in reality, it sacrifices the transparency, the coherence and the quality of STF’s decisions, making it even more overwhelmed, because this system ends up only feeding back litigation, generating incentives and pretexts to endless appealing.