The Brazilian Supreme Court as guardian of the constitution:

between the “illuminist vanguard” and the principle of deference

Abstract

The present paper intends to investigate the possibility of the principle of deference, according to the Chevron doctrine, being used as an instrument to stop the hypotheses of control of the discretion on the administrative merit by Judiciary, thus serving, as a corollary, as a mitigator of judicial activism, as well as a beacon of the balance between powers. Ind order to do so, the historical evolution of the role of the Judiciary will be analyzed within the institutional design thought by Montesquieu. Consequently, the text will reflect on the effects of neo constitutionalism and the recognition of normativity to constitutional principles and values, as well as this phenomenon allowed the Brazilian supreme court to assume the role of guardian of the Constitution, and, in certain hypotheses, as the best interpreter of the majority will, in an “illuminist vanguard” activity, according to the words of Minister Luís Roberto Barroso. The working method is inductive and is primarily based on the collection of bibliographic data, based on specialized Reading on the subject, ando n the analysis of judicial decisions handed down by the Federal Supreme Court that denoted an activist or self-restraint stance. In this scenario, hypotheses are pursued that the harm of activist judicial action can be mitigated from judicial self-restraint, inspired by the Chevron doctrine.