[1] A brief study about the types of constitutional courts was made by Louis Favoreu: (Favoreu 2004).
[2] 2 "The Supreme Federal Court increase of power may be explained, too, due to other factors. The binding effect of its decisions, the national importance and effect of a judicial review case, and the possibility of issuing binding precedents which may alter the entire system, are mechanisms followed by new decision-making techniques as the judicial interpretation, the unconstitutionality declaration without reduction of the constitutional text, the appeal to the legislator, greater attention to the institute of the review, and polemic proposals as the ratio decidendi bound and the transcendence of the reasoning of the court." (Cleve and Lorenzetto 2015, 109). In the same sense: “The Supreme Court’s precedents, that previously affected the entire population only in exceptional cases (when judicial review was performed in abstract, as is done in the European tradition), may determine the outcome of many cases at once. This has been a remarkable innovation and an impressive break with tradition. Today, the Supreme Court has mechanisms to establish guidelines (called súmulas vinculantes) that bind not only the Judiciary, but also the Executive and all its agencies, and all cases trialed can (or at least should) influence lower courts’ decisions.”. (Fonseca 2015, 67).
[3] “Political actors who voluntarily establish institutions that appear to limit their institutional flexibility (such as constitutions and judicial review) may assume that the clipping of their wings under the new institutional structure will be compensated for by the limits it might impose on rival political elements. In short, those who are eager to pay the price of judicial empowerment must assume that their position (absolute or relative) would be improved under a juristocracy.” (Hirschl 2004, 85-86).
[4] It is not unusual for the judges of the Constitutional Courts to expressly admit that their holdings might have unpopular characteristics.
[5] "We should not commit a mistake by claiming that the activism of the Supreme Federal Court is similar to the one of the entire Judiciary, the reasoning of the Court to defend a less deferent position are, generally, as follows: i) The Constitution is a Fundamental Order "guardian" of substantive principles and not only a "Frame Law"; ii) the defense of fundamental rights and of fundamental principles that are based on our political community is a duty of the Judiciary; iii) such a task asks for, many times, the use of new decision-making techniques due to the national social complexity and promote constitutional justice; iv) the activism of the Court is subsidiary, presenting itself only when the other Branches do not act." (Cleve and Lorenzetto 2015, 108-109).
[6] We should not ignore that, by itself, the constitutionality control quantitative exercise aspect may not be fragile to characterize the activism. It does not set apart the possibility of an isolated decision of a Constitutional Court to have a deep impact within the entire Powers organization structure. Anyway, it has been recurrent the characterization of the judicial review most intense use, originating a greater tendency of "border crossing" among the branches.
[7] By any manner, as mentioned by Barry Friedman, the activism meaning definition has not been closed and it has been full of ideological tendencies: “Criticizing the justices grew ever more complicated as the Supreme Court’s rulings seemed to swing to and fro. Although the most frequent criticism head during the Rehnquist Court was that of judicial activism, critics on the left and right could not agree on what the term even meant. Each side believed that it hewed to a principled definition, and each accused the other of simply complaining about decisions it did not like. Shifting rulings caused much reshuffling of critics’ positions. Claims of hypocrisy became the order of the day, as critics turned their attention from the Court and took to calling one another names.” (Friedman 2009, 343).
[8] "The expansion of the Supreme Federal Court authority and the courts, in general, is not, however, a strictly Brazilian phenomenon. There is nowadays broad literature seeking to understand such phenomenon of the advance of the law in detriment of politics, hence, the increase in the authority of the courts in detriment of the parliaments." (Vieira 2010, 511). Accordingly: "[...] this authority expansion process of the courts around the world has notably presented, in Brazil, even stronger marks. The huge ambition of the 1988 constitutional text, summed with the concentration of powers under the Supreme Federal Court jurisdiction, that has been happening for the last twenty years, points to a separation of powers system balance change in Brazil." (Vieira 2008, 444).
[9] “A theory of constitutional interpretation matters, but it is no substitute for a substantive constitutional vision.” (Post and Siegel 2009, 26).
[10] "With the concentration of its activities under the scope of constitutional jurisdiction, with strong discretionary powers, the Court, besides starting to rule just as a panel of judges, may also qualify its deliberative procedure with greater quality. What I fear today is a sum of eleven votes (which is a great number of cases that have been written before the arguments during hearings) and not a Court holding, derived from a strong discussion among the ministers (judges of the Brazilian Supreme Federal Court)." (Vieira 2010, 530)
[11] “[...] it would also be a mistake for progressives to embrace minimalism, a theory that invites judges to construe the Constitution in narrow and shallow ways. Minimalism is aimed at judicial interpreters and counsels against change. It seems unlikely to mobilize progressives to “take back the Court” or to orient the judiciary to break with the conservative constitutional premises that have been incorporated into doctrine in the last several decades. Minimalism cannot endow current generations of Americans with the confidence or role authority to assert their own understanding of the Constitution´s meaning.” (Post and Siegel 2009, 32).
[12] “In fact, mainstream politicians are often more interested in keeping social controversies off the political agenda than in considering the merits of alternative settlements. When disputes arise that most elected officials would rather not address publicly, Supreme Court justices may serve the interests of the political status quo by making policy, taking public responsibility for making policy, and making policy favored by political elites. Judicial policymaking in these circumstances cannot be accurately described as either majoritarian or countermajoritarian; it takes place when and because no legislative majority has formed.” (Graber 1993, 37-38).
[13] The hegemonic preservation thesis works, hence, both for the base of the government and for the opposition: "The judicialization of mega-politics may also be driven by 'hegemonic preservation' attempts taken by influential sociopolitical groups fearful of losing their grip of political power. Such groups and their political representatives are more likely to delegate to the judiciary formative nation-building and collective-identity questions when their worldviews and policy preferences are increasingly challenged in majoritarian decision-making arenas." (Hirschl 2006, 745).
[14] ADPF 186, Rapporteur. Min. Ricardo Lewandowski, j. 31.07.2009, DJe (published) 07.08.2009.
[15] ADI 4650, Rapporteur. Min. Luiz Fux, j. 17.09.2015.
[16] ADPF 347, Repporteur. Min. Marco Aurélio, j. 09.09.2015.
[17] ADI 3112, Repporteur. Min. Ricardo Lewandowski, j. 02.05.2007, DJe 26.10.2007.
[18] ADI 1351, Rapporteur. Min. Marco Aurélio, j. 07.12.2006, DJ 30.03.2007.
[19] ADC 29, Rapporteur. Min. Luiz Fux, j. 16.02.2012, DJe 29;06.2012.
[20] "When taken from the scope of deliberative majority those rights, principles, and institutions which constitute the rule of the Constitution, the ultra-rigid clauses become the democracy safeguarding legitimate instrument, as a paradox when limited" (Vieira 1997, 61). See also: (Canotilho 2003).
[21] 21 "The defense of the CR (Constitution) represents the greatest responsibility of the STF. The STF - which is the guardian of the Constitution, delegated by the Constituent Power - cannot renounce the exercise of this position, because if the Supreme Court fails on the defense of its extremely important duty, the integrity of the political system, the protection of the public freedoms, and the stability of the normative order of the State, the judicial safety, and the legitimacy of the Republic institutions shall be deeply compromised. The unacceptable despise for the Constitution cannot become an accepted governmental practice. At least, while we have a Judiciary Branch which is independent and conscious of its high political, social, and judicial institutional responsibility. (ADI 2.010-MC, Rapporteur Min. Celso de Mello, j. 30.09.1999, DJ 12.04.2002).
[22] "The Constitution seeks, especially, to grant authority to the president of the Reich the possibility of uniting directly this political will of the German people and act, in these terms, as a guardian and defendant of the unity of constitutional totality of the German people" (Schmitt 2007, 234).
[23] “Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.” Marbury v. Madison (1803).
[24] "All of the State actions against the Constitution shall be under the judicial censorship of the courts, especially because they are considered void, null and present no validity at all. The Constitution cannot either submit itself to the will of the constituted powers or the empire of facts and circumstances. The supremacy that it has been vested with - while it is respected - constitutes the most effective guarantee that the rights and freedoms thereunder will never be offended. The STF is liable for safeguarding this reality never to be disfigured." (ADI 293-MC, Rapporteur Min. Celso de Mello, j. 06.06.1990, DJ 16.04.1993).
[25] We may not forget the normative characteristic of the thesis "law as integrity" defended by Ronald Dworkin. The same not always find a correspondence in the "world of men". See: (Dworkin 2003, 276).
[26] "And we may feel tempted including to foresee that the authority of the republic will continue unharmed and safe whereas the act itself, at the beginning as such, is reviewed always when there are constitutional issues in the strictest sense of the word." (Arendt 2011, 262).
[27] See Backer v. Carr (1962), in which the Supreme Court stated to be the "ultimate interpreter of the Constitution"; U.S. v. Nixon (1974), in which the Supreme Court stated that the power to interpret the Constitution may not be divided by the Judiciary as the Executive may not divide the veto power of the President; City of Boerne v. Flores (1997), in which the Court affirmed that, if the Congress could define its powers, altering the sense of the Fourteenth Amendment, the Constitution would become just a law, setting itself in the same level as the other acts of the legislative.
[28] The Supreme Federal Court defended its duty to solely have the last word on Constitutional interpretation: "The normative force of the CR and the monopoly upon the last word, by the STF, in terms of constitutional interpretation. The exercise of constitutional jurisdiction - which has a goal to preserve the supremacy of the Constitution - highlights the essential political dimension that the STF's institutional projection stands, because, in the process of judicial review, the Court is in charge of deciding, lastly, on power and its substance. Within the power of interpreting the Fundamental Law, is present an extraordinary duty to review, the judicial review finds itself amid the informal procedures of constitutional mutation, which means, therefore, that 'The Constitution is being permanently drafted within the courts in charge of its application'. Literature. Precedents. The constitutional interpretation derived from the awards from the STF - to whom it was attributed the function of 'safeguard of the Constitution' (CF, art 102, caput) - plays a role of essential importance in the institutional organization of Brazil, to justify the acknowledgment that the current political model in our Country grants, to the Supreme Court, the duty of having the monopoly of the last word upon the interpretation of rules therein the Fundamental Law." (ADI 3.345, Rapporteur Min. Celso de Mello, j. 25.08.2005, DJe 20.08.2010).
[29] “If judicial supremacy cannot simply be assumed to exist, then it must be politically constructed.” (Whittington 2007, 4).
[30] "[...] we must acknowledge that the Brazilian experience, essentially, confirms the epistemic and consequentialists theories of constitutional dialogues. With effect, the possibility of constitutional amendments approval permitted the deviation from STF judgments, which although based on technical and textual elements, produced very bad practical effects. On the other hand, the STF has contributed a lot to the resolution of constitutional issues in which the National Congress simply could not fulfill its constitutional duty of legislating, or in which the edited rule could not transcend the influence of interest groups especially articulated within parliament headquarters." (Brandão 2012, 299).
[31] “Judicial deference of a different sort takes place when cases are decided on fairly narrow constitutional grounds, a practice that empowers other governing officials to retain at least temporary authority over other manifestations of some constitutional controversy.” (Mark Graber, A New Introduction to American Constitutionalism, 125). Cass Sustein defends the formation of agreements that have not been completely theorized: “Participants in legal controversies try to produce incompletely theorized agreements on particular outcomes. They agree on the result and on relatively narrow or low-level explanations for it. They need not agree on fundamental principle. They do not offer larger or more abstract explanations than are necessary to decide the case.” (Cass Sunstein, ”Incompletely Theorized Agreements.” Havard Law Review, vol. 108, no. 7 (1995): 1735-1736.