The Roles of Supreme Courts in Constitutional Democracies
Articles,  Blog

The Roles of Supreme Courts in Constitutional Democracies


So good afternoon. My name is Paulo Barrozo. I’m on the faculty of
Boston College Life School and the convener of the
Clough Distinguished Lectures in Jurisprudence series. The Clough Center is one of
the most distinguished centers for the study of constitutional
democracy in the world. It’s a highly interdisciplinary
institution bringing together jurists, economists, political
scientists, historians, theologians, philosophers,
novelists, and sociologists. The center is a hub for
thinking noveltively about the challenge of political
and social organization in the 21st century. Through its initiatives,
the Clough Center collaborates with public
and private institutions in civil society in
the United States and around the world in
strategically contributing to the agency, the processes,
the structures, and the ideas helpful to vibrant
democracies in good governance and the rule of law and
commitment to human rights. The Clough
Distinguished Lectures in Jurisprudence series is one
of the flagship initiatives of the Clough Center and
I’m delighted, in the name of my dear colleague and
the director of the Clough Center for the Study
of Constitutional Democracy, Professor Vlad
Perju, to welcome you all to yet another event of
this jurisprudence series. The speakers in the series
have included Jeremy Waldron, Seana Shiffrin, Amartya Sen,
Tommie Shelby, John Thenes, Jergen Habermas, Nicola Lacey,
Roberto Unger, Frank Michelman, Michael Walzer, Bruce
Ackerman, and Cristina Lafont. We are delighted to have today
Justice Luis Roberto Barosso of the Brazilian Supreme Court. Brazil is a large
country of contrasts. It has 207 million people
of whom 112 million voted in the last
presidential election. The country emerged the
’80s from two decades of military dictatorship. In its transition to
democracy, a constitution, a new democratic constitution,
was promulgated in 1988. The Brazilian
Constitution of 1988 codified most of
the progress that had been made over
the previous 200 years by constitutionalism
anywhere in the world. In addition to the
codification of the tradition of constitutionalism
in modern times, the Brazilian
constitution was also in the forefront of
a number of topics, social and economic rights– the environmental chapter
of the Constitution is very progressive– the right
of native Brazilians and so on. So there they were, a large
country, the eighth economy in the world, emerging
from military rule with a new constitution
that needed to be explained, that needed to be expounded,
that needed to be theorized, that needed to be litigated, and
that needed to be adjudicated. No single person has done
more to expound and theorize the Constitution, to
litigate the Constitution as an attorney, and now to
adjudicate the Constitution as a justice of
the Supreme Court, then Luis Roberto Barroso. Justice Barroso is a
graduate of Yale Law School, and of the Fact of Law of
the Rio de Janeiro State University, where be is the
Chair of Constitutional Law. And Justice Barroso has joined
the court four years ago and his imprint is
already remarkable. Also I would like now to ask you
to allow me to switch language just for a moment
to contextualize the lecture to the Spanish and
Portuguese speakers– audiences in the Americas that will
be watching us online. [SPEAKING PORTUGUESE] Without further ado, we are
delighted and honored to have among us at Boston College Law
School Justice Luis Roberto Barroso of the
Brazilian Supreme Court. Justice, you have the floor. [APPLAUSE] Thank you, Paulo. It’s a pleasure and
an honor to be here and to share with you all some
ideas and some reflections on the roles of supreme courts
in contemporary democracies. I want, in the first place,
to of course thank the Clough Center for the Study of
Constitutional Democracy and its director, Professor Vlad
Perju, for the kind invitation. Professor Perju, as
you certainly know, is an outstanding scholar in
comparative constitutional law– has important
works on cosmopolitanism. And I’m very happy
that you invited me. I also want to thank my
good friend Paulo Barrozo for endorsing the invitation. Paulo and I have an academic
communication that goes back in time for my great benefit,
and to some detriment to him, but it’s very good
to have you here. And I also want to acknowledge
the presence of my good friend, Richard Albert who has been an
important ambassador, I would say, for comparative
constitutionalism. And I think his energy,
his stewardship and talent have been bringing
people and ideas together and that’s a major achievement. It’s a pleasure to
have you here, Richard. And I also want to
thank you for allowing me to talk about
something different than the Brazilian crisis,
because this is what I’ve been talking wherever
I go and it’s very good to be able to
make this theoretical trip. Brazil is going through tough
times as you probably know. I just heard from my good
friend Carl [? Lazarus ?] a good story that
kind of reminds me of what we are going on. This guy went to the
doctor, and the doctor says, I have bad news for you and I
have even worse news for you. And he said, well, give
me the bad ones first. And he says, you only
have 24 hours to live. He said, what could
be worse than that? And the doctor says,
I’ve been meaning to tell you since yesterday. So this is how we are
feeling about Brazil. The world constitutionalism
is experiencing a moment of effervescence,
of excitement, which includes an
intense [INAUDIBLE] between different actors,
academics, judges, the issue of the using
of foreign doctrine and foreign precedents. We can see the flourishing
of constitutional courts and international courts in
different parts of the world. There is a sort of
universalization of the discourse
on human rights. So we live a moment
in which people are talking, for good
reasons, in a sort of a global
constitutionalism, which doesn’t mean that we are talking
about a single world order. That’s not something in
sight at this moment, but we’re talking
about the migration of constitutional ideas, legal
transplants, cosmopolitanism, transnational discourse. Vlad has commented
this fact, and he referred to a
battle of metaphors to identify this phenomenon
that is going on. But I think I can say properly
that the basic package of constitutionalism,
contemporary constitutionalism, contains many ideas, contains
many concepts and institutions that originated in the
constitutional practice of the United States. But the truth is that these
ideas and these institutions, they have traveled the world and
they have acquired new colors. They have acquired new flavors. So what I’m going
to be doing today is to take into account the
American constitutional theory and the US Supreme
Court case law and try to contextualize it in
a more broader picture of ideas that circulate in the world
that have been referred as global constitutionalism. So the purpose of my lecture
under this perspective is to emphasize three
different aspects, three different points,
three different chapters. In the first one,
I want to address this rise of the judiciary and
particularly of supreme courts all over the world. In the second chapter, I
want to discuss a little bit this stormy relationship
between law and politics whose boundaries have
become much more fluid in the past decades. And finally I want to discuss
the roles of supreme courts and constitutional
courts in the world– the three roles that
I think they actually play that I have divided into
counter-majoritarian role, representative role,
and enlightened role. So we start with
this first chapter, the rise of the judiciary and
the judicialization of life. One characteristic of the
current times, as I mentioned, is this rise of the judiciary
and a certain judicialization of life throughout the world. Judicialization means that
some important decisions, moral, economic, social, have
been transferred to the courts and are having their final
chapter decided in courts and particularly decided
before the supreme courts. As anyone can perceive, this
involves a major transfer of power from the traditional
political branches to the courts and to
the Supreme Court. There are several causes
for this phenomenon and they are studied by
constitutional scholars and by political scientists. We won’t have time
to make this detour. I just want to stress here
that, in the modern democracies, I think we can say
that supreme courts, as in constitutional courts, have
three basic missions, three main missions. The first one is to ensure
the role of majority, and of course courts must defer
to the political decisions that have been taken by the
political branches. In the second place,
constitutional courts have the role of protecting
the rules of democratic gain– of the democratic
game, and this has become very important to avoid
that the current majority changes the rules so that
it can perpetuate themselves and they can perpetually then
stay absolutely in power. And third, and very
important, supreme courts and constitutional courts must
protect fundamental rights including, of course,
the rights of minorities. So in this environment where
courts play these roles and have this
missions, the examples of judicialization throughout
the world are very impressive. Like in Brazil, for example,
it was the Supreme Court that established the
procedure for the impeachment of the president
of the republic. It was the Supreme Court
that expelled very recently the Speaker of the House
that was interfering with a criminal investigation. It was the Supreme Court that
paved the way to gay marriage in Brazil. In the United States, to
give a powerful example of judicialization, it
was the Supreme Court that decided actually
the election of 2000 as you certainly know. It was the Supreme
Court that recently validated a drastic interference
in the Californian prison system. And more recently it
was the Supreme Court that secured the
right to gay marriage. In Israel, it was
the Supreme Court that decided about the
constitutionality of building a wall on the border with
the Palestinian territory. In South Korea it
was the Supreme Court that restored to
office a president that had been impeached. That was a previous case
than the one going on. In South Africa it was
the Constitutional Court that declared unconstitutional
the death penalty. So all over the world
examples multiply in which the supreme courts or
constitutional courts are making these
important decisions that affect the state, society,
and people generally. And this phenomenon has
put a lot of pressure and a lot of tension
in the border that demarcates the
proper space of law and the proper
space of politics. And it has challenged
the traditional view of separation of power. And it has created
an important demand for the justification of
the actions of the court and the verification
of the extension of its democratic
legitimacy to produce some of these decisions. And so this brings us
to our second chapter, which is law and politics
and this tenuous frontier and mobile frontier
that now separates in. Clearly the separation
of law and politics has been considered an essential
idea to the rule of law, to the constitutional
d democratic states, and of course law
should and must have a vigorous pretension,
vigorous claim of autonomy, in relation to politics. But as we all
probably know by now, this autonomy can only be
relative in this open, plural, and complex society
that we now live in. The Constitution, the
law, cannot foresee all possibilities that actually
happen in real life, and so there’s no black
letter law to face many of the problems that are
raised by modern life. I kind of compiled a few
unusual cases, all true cases, that have been decided
by courts more recently. First one, can a
deaf mute couple through genetic
engineering choose to generate a deaf mute child
so that the child inhabits the same existential
universe as they do? That was a true question. Can a woman– can a woman use
the sperm of her dead husband, frozen in a sperm bank, to
get pregnant from the husband that of course is deceased, and
how this affects the succession and everything. Or a case that– true case
that happened in Brazil, there was a woman in the
liver transplant list. And she gets to the
first place in the list and she gets a liver. And then the list moves
on and a gentleman becomes the first
one in the list when a new liver becomes available. The woman that got the
previous liver has a rejection, so there was a judicial
dispute about who had the better claim to the liver. So where was the solution
for this case written? Nowhere. So we’re living in a world
that in many situations the courts become coparticipants
in the process of creating the law. I mentioned some
unusual cases, but there are some more trivial
cases involving collisions and tensions
between, for example, freedom of expression
and rights of privacy, collisions between
environmental protection and the right to
development, collisions involving free initiative
and consumers protection. So in the modern world
there is quite often a political dimension in
the activity of courts, of the judiciary
generally, not political in the partisan sense,
but political in the sense that judges use their
own subjectivity. They sometimes create the rule
that’s going to be applied or at least they make choices. And of course,
the point of view, the point of observation of
the judge and of the court, might make an
important difference in the outcome of the case. I like to illustrate this
possibility, this subjectivity in how people see the world
through different lenses, with a true case that happened
with a famous Brazilian soccer player many years
ago, Garrincha. He played in Rio. There is a big stadium
in Rio called Maracana. That’s the name of the
main soccer stadium in Rio. So this guy went with
the national soccer team to play in Italy against Italy. And after the game they
took him sightseeing, and after he left the Colosseum
and he spoke to the press, and he says, I don’t
know why they talk so much about this Colosseum. It’s smaller than Maracana and
it needs urgent renovation. So people just see the world
through their own lenses and that happens to judges too. So I wrote a paper
for this presentation. I’m still finishing it up. And I have a chapter
on factors that influence a judicial decision. Of course you have
the legal materials, but you have attitudinal models,
you have institutional factors, you have strategic factors. So this important ambition
that law be independent from politics can only be
accomplished partially. That’s what I wanted to
say for our second chapter. And now I get to our
third and main chapter of our talk in which I intend
to discuss and demonstrate that constitutional
courts and supreme courts play three different roles
although this has not been quite perceived by
constitutional theory more generally. I want to start saying this– the two first written
constitutions in the world, two of the first
constitutions in the world, the American
Constitution from 1787 and the French
Constitution from 1791, they led to two very different
models of constitutionalism. In the French model that spread
through continental Europe, the constitution
assumed essentially a political dimension with
no direct and immediate application with no
direct enforcement. The constitution was not a tool
for lawyers more generally. The great principle in this
model of constitutionalism was the principle of the
supremacy of parliament, and there was no judicial
review as you all know. On the other hand,
the American model, at least since Marbury versus
Madison decided in 1803, was characterized
by the recognition of this legal dimension
of the Constitution with the possibility of direct
and immediate enforcement of its provisions
by courts generally. So the great principle
here from the beginning was the supremacy
of the constitution, not the supremacy of
parliament as it was in Europe. And thus from the
beginning courts generally, and the Supreme Court,
could invalidate acts enacted by the legislature
and even acts by the executive. What I want to say is that,
after World World War II, the American model
prevailed in the world more generally starting with
the German constitution. There was a
precedent in Austria, but we won’t talk
about this here. So Europe mostly adopted
the American model of constitutionalism. It’s true that the
structure and the procedure there is different, but the
basic implicit principles are the same. The Constitution is
endowed with supremacy and courts can enforce
the constitution, invalidating the statutes
or any other acts that are in contradiction
with the constitution. So the point I’m making
here is the world basically practices
this American idea of the constitution
that is supreme and can be enforced by courts. In this environment,
courts play as I’ve mean trying to state, three
roles, counter-majoritarian, which is the role
that we all know, that’s the nickname that the
constitutional theory gave to this possibility that
unelected judges will invalidate acts practiced
by the elected branches. The second role, less studied,
is this representative role, which is the role that courts
perform when they attend social demands that were
not timely satisfied by political majorities– by the
majoritarian political process. And in the third
place this enlightened role, which is the role that
constitutional courts exercise exceptionally against the will
of the legislature and even against the popular
majority with the purpose of protecting minorities
and advancing history. So I would like to discuss
very briefly these three rules and then we are going to close. The counter-majoritarian
role is the one I’m going to spend the least
time with, because this is the well known subject. And it’s probably one of
the most studied subjects in constitutional
theory that recognizes this possibility that
courts can void acts from the other branches. The precedent is Marbury versus
Madison in which the US Supreme Court considered
unconstitutional the very statute that gave
it power to adjudicate one specific case. That was the first precedent. And this role, the
counter-majoritarian role is exercised by courts
generally with great parsimony. I checked the statistics. Be it in the United States
or in Germany or in Brazil, a fairly low amount, low
percentage, of statutes, of federal provisions
mainly, were actually invalidated by supreme courts
or constitutional courts. And I would say that, despite
some theoretical resistance, this has become
the common wisdom that this power to
invalidate statutes, the power of judicial
review, is legitimate. And in the US you’ll
find important authors like Jeremy Waldron,
Mark Tushnet to a certain extent, that
still oppose this idea, but I think we can say
that the legitimacy of constitutional
jurisdiction and of this
counter-majoritarian role is largely dominant in
contemporary constitutional theory. One point I want to stress
here in the United States, what we call in other places
constitutional jurisdiction, comes down basically
to judicial review, the power to
invalidate statutes. And for this reason
it’s called here counter-majoritarian
behavior or action after Alexander
[? Bickel ?] mentioned the counter-majoritarian
difficulty. I’m going to try to demonstrate
that it’s not always so. Like when you
invalidate a statute, maybe you’re not acting in a
counter-majoritarian fashion. That takes us to the second
role of supreme courts as I see them, which is
the representative role. The contemporary
democracies are made, according to my view, of
votes, rights, and reason. These are the three components
and that gives democracy three different dimensions. So we can talk of first
representative democracy. And representative
democracy has, as its essential
element, popular vote, and as their
institutional protagonists both Congress and
the president who are elected by popular vote. The second dimension
of democracy is constitutional democracy. And the essential element of
a constitutional democracy is respect for
fundamental rights. And the institutional
protagonist of this dimension of democracy
is the Supreme Court. And finally the third dimension
is deliberative democracy. And the essential element
of deliberative democracy is public debate. It’s offering reasons, debating
reasons, and then deliberating for the better or for
the best argument. So deliberative democracy
has as its main institutional protagonist civil society. I’m saying this because
in this universe of giving reasons and
justifications courts play an important role,
because reasoning, motivation, justifications, are the raw
material with which courts basically works. So what I’m going to
say is that sometimes, by exception but
never as a rule, courts might need to
act as main interpreters of the social sentiment of
the will of the majority. It happens especially
when there is a blockage in the political
process, when they’re failure in deliberation by
the majorities and, of course, to legitimize what
the court is doing. It needs to give
the proper reasons. It is what Robert Alexy,
a German philosopher, calls the discursive
legitimation, or the argumentative
legitimation of courts. Before closing this topic
and giving a couple examples, I would like to
make two remarks. First is a terminalogical
remark, which is the following. If one accepts the point
I’m trying to make, that courts
sometimes can be more representative than
the legislature, then we would have to
assume that the word counter-majoritarian is not
always properly employed. What a decision that
voids a law will always be is counter-legislative or
counter-congressional or counter-parliamentary,
but not necessarily counter-majoritarian, because
sometimes as I’m saying it’s not Congress that
is properly acting on behalf of the majority. The second observation
I would like to make is that a lot of
empirical research has demonstrated
that supreme courts and constitutional
courts almost invariably ultimately align themselves
with the will of the majority. They might act in a
counter-majoritarian fashion, and sometimes they
need to, but most often than not supreme
courts do represent the majoritarian
sentiment in society. So now I would like to give
very briefly a few examples of decisions in which courts
were more representative than legislature. I will start with
some world examples and then I’ll try to give
some American examples. In the case of the
Brazilian Supreme Court, it was the court that
decided that nepotism in the public service was
against the constitution. After many years
waiting for a statute to be passed by
Congress prohibiting the appointment of
relatives, the court just said we have this
administrative morality principle in the constitution,
and since the law doesn’t come, we are going to extract
a ruling directly from the constitution
prohibiting nepotism. So the court actually
played a representative role attending a social demand that
was not attended by Congress. A second example
still in Brazil we had, as anyone that
reads the paper could find out, a major problem
with electoral financing by private companies. Well the system was very
indecent, very immoral, and it was the
Supreme Court that, tired of waiting for Congress
to change the system, struck down the
legislation that was in force regarding this matter. To mention another
powerful example in Canada, the Supreme Court recognized the
fundamental right to abortion. It was the Supreme Court there
and that position of the court, maybe unlike other
parts of the world, corresponded to the
will of the majority. So the law did not express
the majoritarian view of Canadian society
in that matter. I have several examples,
but I have to move on. So the representative role
I’m trying to highlight here is when a court satisfies social
demands that were not properly taken care by the legislature. I’ll give you two
American examples and then I’ll move
to my last chapter. Here an important
decision in 1965, Griswold versus Connecticut. According to the
traditional view this was a counter majority
authoritarian decision because they struck down
the Connecticut Comstock Act of 1879, but I dare
to say, although there’s no specific poll,
that in 1965 when we were at the height
of the sexual revolution of the affirmation of
the feminist movement I can probably affirm that the
majority of American society was not in favor
of criminalizing the use of contraceptives,
so this was rather a representative than a
counter-majoritarian decision. The other example I have
is Lawrence versus Texas decided in 2003, that overruled
Bowers versus Hardwick, and decided that it was
unconstitutional to criminalize homosexual intimate relations. And of course in
the 21st century I can probably certain
with no great doubt that the majority of
the American society would not think that
homosexuality was a crime. So again I think this was
more of a representative than of a counter-majoritarian
decision. So in both examples, although
the traditional terminology refers to these decisions
as counter-majoritarian, they were probably only
counter-legislative, but they were
majoritarian because they were representative of
the predominant feeling. And the last rule is
this enlightened role, which is a role fraught with
risk and with dangers of course for the democratic
hazard that it offers, but I want to say–
what I want to say is that throughout history,
history of the world, in many instances, some
essential advances, some essential civilizational
progresses, had to be made in the name of
reason against common sense, against the laws enforced, and
against the majoritarian will of society. Some examples, the evolution
of slavery in some parts of the world, the protection
of women in many parts of the world, the protection
of African descendants in many parts of the world, the
protection of gay persons in many parts of the
world, the transgenders, religious minorities, the
protections of many fundamental rights cannot depend on
the majoritarian process and sometimes they cannot depend
on the will of the majority. The central idea of a
fundamental right is that it cannot depend on the
will of the majority. This is a very exceptional
competence as I said, but there are many cases in
the history of the world, in the history of
the United States, that this has been decisive
to bring progress to society. And just to make sure
and dispel any image of an authoritarian or
aristocratic world view, this has nothing to do
with enlightened despotism or with the philosopher
kings of Plato. It has more to do with
the tradition that comes from Aristotle, Thomas
Aquinas, Hagar, or Kent, that history is
a continuous flow toward the good and improvement
of the human condition. In the fortunate words
of Paulo Barrozo, my host at this moment, in
a magnificent piece called The Great Alliance, he
wrote that, from antiquity in the societies of
Athens, Rome and Jerusalem law has always been found at
the intersection of history, reason, and will. Well, what I’m saying
is the supreme courts and constitutional
courts sometimes need to be the law
because of reason. Some examples
throughout the world– in Brazil it was
the Supreme Court that assured gay rights,
women’s rights to an abortion, and animals rights that I won’t
expand on this due to our time. In Germany the
well-known Luth case put fundamental rights
over patrimonial interests in an important case involving
freedom of expression that many of you will know. In South Africa, as
I mentioned before, it was the Supreme Court,
the Constitutional Court, that abolished the death
penalty and more recently the Supreme Court of India
issued an important decision recognizing fundamental rights
of transgendered persons. Who could think that
majorities would take care of transgenders? It’s either the court
or no one will do it. Some examples in the
American case law, and then we’re going
to come to an end. First and most obvious,
Brown versus Board of Education decided in 1954
is a paradigmatic example of an enlightened decision. Consider the atmosphere
of blatant racism that still dominated
Congress and American society at that point. And as you probably know
and studied, there was– the status quo offered
very strong resistance to the compliance
with this decision. There were political
criticism saying that the court assumed a role
of a third legislative chamber– nobody different than Justice
Learned Hand said that– and doctrinal criticism that
the court in Brown had not observed neutral principles
of interpretation as you can find in a very
important work by Professor Wechsler. So I think that’s a
very emblematic example of an enlightened
decision, enlightened because against
Congress and probably against the dominant
common sense at that point. Another example,
Loving versus Virginia, ruled in 1967 that
held unconstitutional the prohibition of
interracial marriage in the time in which all
16 southern states had anti-miscegenation laws. I’ve read and there’s
some discussion that probably in
the northern states that view was not
the prevailing view, so we can say that
it was representative of the views of the north, but
it was certainly enlightened for the southern states. The last two decisions
I want to make are– I want to mention are somewhat
connected to religious beliefs, and that takes us back to
the origins of the word enlightened. One case that is–
it’s still very divisive in the American society
is Roe versus Wade, the one that decriminalized abortion. And it’s discussed
unto these days. That was clearly under my view
as an enlightened decision. I know there’s some
literature that says that, if the court
had not intervened, maybe that would
come politically through the legislative process. I’m not sure, but when
I face things like this, I like to think of a very good
quote by Martin Luther King when he said, the time is
always right to do what’s right. So you can’t tell people
history is running a little behind, so you wait
a while because in one or two generations this is
going to be settled. This is not how I think
things should work. And the last example is
Obergerfell versus Hodges, decided in 2015, that held that
marriage is a fundamental right that cannot be denied to same
sex couples and that states should give full recognition
to same sex marriages performed in other states. Here, according to
some polls, this would be a
representative decision not an enlightened decision. There are some discussions
whether the majority of the American population
supported or not this decision, but clearly I wouldn’t classify
it as counter-majoritarian. Maybe it was
counter-legislative, because there was a federal law
providing in a different way, but probably it was
representative or at least it was enlightened in the sense
that where a person puts his love and his sexuality
cannot depend on the will of the state. That’s a fundamental
right and even if the laws don’t recognize it
expressly, the courts should push history forward
in a case like this. So of course I’m making
a long story very short, because these are
our circumstances. So I just want to
point out courts don’t always get it right. There are some known
enlightened decisions that we could discuss
extensively here. I will just highlight
two of them. Dred Scott versus Sanford
from 1857, and probably Korematsu versus United
States from 1944. But what I wanted to demonstrate
in our brief conversation today is that sometimes,
of course, courts act in a
counter-majoritarian fashion and that’s the only category
we are used to deal with, but what I am trying to show
in this more detailed paper that I’m finishing to write
and I’ll give to Paulo, and this is an English
version I hope. I tried to demonstrate that
there are two other roles that must be taken into account
by constitutional theory. I read, Paulo, somewhere
that George Washington gave delivered the
shortest inauguration speech in the presidency
of the United States with 133 words And that a
gentleman named William Henry Harrison delivered the
longest inauguration speech with over
8,000 words pronounced in a very cold and stormy
night in Washington, D.C. And I read that this
poor man died 30 days later from a horrible
pneumonia he caught that night. And I have assumed
since I read that that’s the curse that befalls people
that talk beyond their time, so I’m going to come
to my conclusion. Throughout this quick lecture
that I was very honored to be invited to, and
I thank you all again, I have sought to one,
bring reflections about the rise of the
judiciary and of supreme courts in the contemporary
world and how this has brought an important
degree of judicialization of modern life. The second idea I
wanted to highlight was how frontiers
in law and politics have become more fluid,
and, and this the chapter we didn’t have the
chance to discuss, there are several factors. The legal materials
are very important, but they are not for
good and for bad the only factors that influence
a judicial decision. And third I tried to explore
different roles that I think are played by supreme courts. Sometimes they must act in a
counter-majoritarian fashion, but even if you don’t
like it normatively– positively, we can easily
witness that quite often courts act in a representative
fashion and not so often, but in the size
of moments, courts act in an enlightened fashion. I think supreme courts
and constitutional courts should never be
pretentious in life. Courts shall not
be shy or arrogant, and they should not presume
too much of themselves but they should not hold back
when they should actually act. So what I want to
say at the closing here is that life is made
of prudences and of dares, sometimes difficult
to be sure when it’s one case, when
it’s the other, and probably we need
to find a middle way. And I like to illustrate
this with a parable and with it I end my talk. In life we are always trying
to find the right balance. This is true for people, and
this is true for institutions. This is true for someone who
is on stage, and from someone that is in the audience. To live is to balance in
a tightrope making choices every step along the way. Sometimes people in the
audience might think that the acrobat is flying. It happens. That isn’t much of a problem. Life is made of
certain illusions, but the acrobat, he
must know that he’s not flying, because if he thinks for
one second that he is flying, he’s going to fall. And in real life there
is no safety net, so I think that constitutional
jurisdiction, and thus judicial review, must be
exercised the same way I think life should be lived– with values, determination,
a little bit of good humor, and humility. Thank you very much.

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