ENTRE ATIVISMO JUDICIAL E PROTAGONISMO JUDICIAL: Uma análise de decisões que envolvem direitos fundamentais no Supremo Tribunal Federal e Tribunal de Justiça do Maranhão de 2020 a 2024

Abstract

This study is dedicated to the analysis of the phenomena of Judicial Activism and Judicial Leadership within the Brazilian legal context, with particular emphasis on decisions involving fundamental rights issued between 2020 and 2024 by the Federal Supreme Court (STF) and the Court of Justice of the State of Maranhão (TJMA), in light of the 1988 Federal Constitution. The research stems from the observation of a persistent conceptual ambiguity between these two distinct institutes, which are frequently treated indistinctly under the generic label of Judicial Activism. The central hypothesis argues that this imprecision undermines the understanding of the Judiciary’s role, fostering generalized criticism of its institutional function, especially in cases requiring the enforcement of fundamental rights. In this context, the lack of a clear distinction between Judicial Leadership and Judicial Activism has contributed to the intensification of tensions among the branches of government, jeopardizing institutional dialogue and harmony. In order to address this issue, the study proposes theoretical and conceptual definitions for both phenomena, aiming to offer analytical criteria that assist in identifying and distinguishing their practical manifestations. To that end, a comprehensive overview of the state of the art regarding Judicial Activism was developed, encompassing its origins in the international context and its reception and evolution in Brazil. The research also included the analysis of landmark decisions in which activist behavior was observed, as well as rulings that demonstrated legitimate judicial leadership. The methodology adopted was based on the inductive approach, combined with the socio-legal critical method and the juridicalpropositional procedure, employing qualitative, bibliographical, and documental research techniques. The critical analysis of case law involving fundamental rights, handed down by the STF and the TJMA, allowed not only the concrete identification of both phenomena but also the validation of the theoretical need to distinguish them.