ACTIVISTS OR DEFERENT COURTS? WHAT THE ANALYSIS OF JURISPRUDENCE REVEALS

Abstract

The article compiles, organizes and interprets data from jurisprudential research of Santa Catarina Court of Justice (Tribunal de Justiça de Santa Catarina [TJSC]), in order to map the profile of the judicial review of Public Administration. The problem to be answered is whether it is possible to deduce, from the analysis of a certain set of judicial decisions, behavior pattern more/less activist/deferential of the Judiciary towards the administrative acts. The study presents, as a theoretical reference, bibliographic research on the scope and extent of the judicial review of administrative acts, with special focus on the theories designated as activists and deferential. The judicial precedents of the TJSC, taken as a reference for the present study, demonstrate that (i) the existence of a greater number of decisions in second instance for the annulment or alteration of administrative acts, (ii) the recurring appeal to undetermined legal categories as argument to review administrative acts, (iii) the inconsistency between the different thematic chambers of the Court on the grounds used and the outcome of the judgments are, together, elements that suggest the effective occurrence of activist behavior the Court in the matter under analysis.

Judicial review of the Public Administration; judicial activism; deference; Chevron doctrine; constitutionalization of law