Uma corte de razões individuais: obstáculos à identificação da ratio decidendi no Supremo Tribunal Federal

Abstract

This article analyzes the deliberative process of the Brazilian Supreme Court (BSC), mainly regarding the form of collegiate decision-making and obstacles to the identification of the court’s ratio decidendi. Collegiality as a constitutional rule requires that multi-personnel bodies build their decisions in a way that allows for the exchange of arguments in the search for consensus, observing the determining foundations of decisions in the future judgments. Therefore, the application of precedents necessarily depends on the identification of the ratio decidendi of the Court’s decisions. However, the institutional practice of the BSC seems to be shaped by the soloist performance of the justices, who build individual reasons between the judges, who form a final decision as a junction of individual opinions. Articles on Brazilian constitutional jurisdiction are adopted as a critical parameter, especially regarding the ideal of deliberation of a constitutional court, as analyzed by Conrado Hübner Mendes. The qualitative research, with a critical and comprehensive character, makes use of doctrinal, legal, regulatory and jurisprudential sources, with emphasis on the Internal Regulations of the BSC and its implications for the decision-making practice of the Court. It is concluded that the BSC can be considered a non-deliberative Court in view of regulatory aspects, the form of decision-making, the absence of interaction between the Ministers and the form of the final wording of the Court.