Abstract
This article identifies and discusses a case of “crypto-activism” - a type of judicial intervention in legislative activities that is far from negligible, although hidden behind external signs of deference, such as the declaration of constitutionality. Clear examples of crypto-activism frequently appear in decisions based on an “interpretation according to the constitution”, in which statutes are formally upheld by judges but their content is altered through additions to the legal text. In this article, we identify a more subtle mechanism capable of producing this phenomenon. We argue that the Supreme Court’s decision regarding the constitutionality of the statute that established ProUni altered its content by redesigning the policy’s purpose - even though the statute was declared constitutional. The change is not visible in the operative part of the decision, but rather in its substance, which disregarded the legislator’s concrete intent to design a focalized public policy and attributed to it the more ambitious purpose of universally reducing social inequality. We use the ProUni case to point out problems with the traditional view that Brazil’s case law and legal doctrine has with respect to “legislative intent”. To absolutely disregard legislative history when examining the purposes of statutes that establish public policies is an approach that may produce consequences in the world.
Keywords:
Public policies; judicial interpretation; legislative intent; judicial activism; Supreme Federal Court