O efeito backlash e as decisões do Supremo Tribunal Federal

Abstract

This paper examines the backlash effect in order to identify its occurrence as a reaction to the countermajority decisions of the Brazilian Federal Supreme Court (STF) on matters deemed to polemic. This is justified by the importance of equilibrium in the relations between the Judicial Branch, the political powers of the State and society. In order to identify the occurrence of the backlash effect in reaction to those decisions, we (1) studied the origin of the backlash effect; (2) analyzed its conceptual treatment in order to identify the definition to be adopted; (3) examined the elements of the judicial decision - ratio decidendi, rationales, obiter dicta - in order to extract its core or thesis, and contrast it with its effects, verifying whether or not the phenomenon in question occurred. Bibliographic research was carried out in foreign and domestic works, in addition to empirical research in different documental sources: (1) fourteen judicial decisions of the Brazilian Federal Supreme Court indicated by the doctrine as generating a backlash effect; (2) two Brazilian newspapers with high circulation, in order to verify the occurrence of a social backlash effect; (3) programs of the parties of the Presidents of the Republic who appointed the Ministers of the Federal Supreme Court voting in those 15 decisions, in order to examine the possible association of the backlash effect with left or rightwing governments. We also conducted legislative research on laws and constitutional amendments, doctrinally cited as contrary to the Federal Supreme Court's decisions, in order to confirm the occurrence of a legislative backlash effect. From the analysis of the 15 decisions selected, 13 cases of backlash effect were identified; 7 of these presented a social backlash effect (ADI 3105-8, ADI 3510, ADPF 187, ADPF 186, ADPF 153, ADPF 132, and ADPF 54) and 6 presented a legislative backlash effect (ADI 14, RE 153771-0, RE 233332-6, RE 197917- 8, ADI 4983, and ADPF 153).