O Fututo do Constitucionalismo - Caderno de Resumos [2014][l]

Ativismo judicial e comportamento judicial • 367
Although this defense rightfully acknowledges that the legitimacy
of courts depends entirely upon their deliberative performances,
I believe that Hübner Mendes’ idea of collegiality is utterly contrary
to the democratic institutional operation of a constitutional State. In
spite of the relevance of interaction and communication, collegiality
cannot disguise the existence of different views and opinions among
the deliberators. A legitimate method of adjudication is therefore one
that puts in evidence the full reasons and disagreements within the
deliberation process, however insignificant they are.
Considering the intensity of a preference implies the recognition
that every question arouses a varied degree of involvement, interest
and principled conviction. 4 In public deliberation, these degrees
must be necessarily brought to light. A majority cannot present its
weak inclination in a false shell, since the democratic game requires
that intense minorities may plead, claim, discuss and persuade based
on the strength of their preference. This dialectical dynamism is the
fundamental basis of a regime in which groups with less space are
able to engender their demands through efficient channels. In this
sense, the mentioned pragmatic yet principled model of constitutional
argumentation, which intends to strike a balance between the
legal and political constraints that interfere in the deliberative activity
of a court, is unquestionably dangerous to the maintenance of an
open and continuous space of democratic decision-making.
The reinstallation of apparently closed discussions depends largely
on the intensity of the preferences that support the closing decisions.
Hence, a transparently non-unanimous decision taken by a court is
much more easily reintroduced into the debate arena than a falsely
unanimous one. And more, the allocation of the Legislature as a genuine
space of deliberative containment, which I consider to be one of the
most important pillars of our modern democratic rule of law, strongly
relies upon the sincerity and the clarity of the motivation that upholds
any public resolution, mainly the opinions delivered by a court in a
circumstance of profound and authentic disagreement.