JUDICIAL ACTIVISM OR FULFILLMENT OF THE CONSTITUTIONAL FUNCTION: AN ANALYSIS THROUGH THE LENS OF THE PRINCIPLE OF THE PROHIBITION OF INSUFFICIENT PROTECTION

Abstract

This paper analyzes the phenomenon of judicial activism in the Brazilian Supreme Federal Court (STF) through the lens of the principle of the prohibition of insufficient protection, seeking to determine whether the Court’s actions exceed its institutional limits or represent the legitimate fulfillment of its constitutional role. The qualitative research employed the deductive method and was based on a literature review and the analysis of landmark decisions, particularly Extraordinary Appeal No. 635,659/SP. Findings indicate that the STF’s performance in the face of legislative omission must be assessed on a case-by-case basis, considering the legal reasoning and the extent of normative inertia. The regulation of certain situations does not, by itself, constitute judicial activism. Assessing potential overreach depends on the context and motivation of each decision, and it is essential that every branch act within its constitutional functions to preserve institutional balance and ensure the effectiveness of fundamental rights.