When backlashes and 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 the court's authority. Focusing on Brazil's Supreme Court as our case study, we raise the hypothesis that the power to review constitutional amendments allows the justices to primarily decide cases according to their own policy preferences, rather than by searching for second-best solutions considering possible political overrides and backlashes. We argue, in sum, that the behaviour of justices might be altered by the power to review constitutional amendments, insofar as they have less to fear from political backlashes and overrides.