When Backlashes & Overrides Do Not Scare: The Power to Review Constitutional Amendments and the Case of Brazil’s Supreme Court

Abstract

This study deals with two of the most significant trends in global constitutionalism: the rising power of courts to review the ‘constitutionality’ of formal constitutional amendments, and political backlashes – as part of democratic erosion – aiming to curtail court’s authorities. Focusing on Brazil’s Supreme Court as our case study and using rational choice theory, we demonstrate how the power to review constitutional amendments gears the Court toward a “sincere” approach to constitutional adjudication. In other words, this judicial power allows the court to primarily decide cases according to its own policy preferences, rather than an “insincere” approach, searching for second-best solutions considering possible political overrides and backlashes. Consequently, a court with the power to review constitutional amendments, we argue, has less to fear from political backlashes and overrides.