RESPONSIVE JUDICIAL REVIEW, PROPORTIONALITY, AND CALIBRATED SCRUTINY IN BRAZILIAN JUDICIAL PRACTICE

Abstract

This paper examines the feasibility of implementing the model of responsive judicial review, proposed by Rosalind Dixon, in Brazilian constitutional practice. The theory of responsive judicial review proposes a variation in the intensity of judicial scrutiny according to the degree of democratic dysfunction present in each case. In view of this, the paper explores the potential benefits and challenges involved in adapting the proportionality test – which is currently the prevalent model of rights adjudication in Brazil – to explicitly incorporate variation in the level of scrutiny. It is argued that such an initiative could strengthen Brazilian courts’ ability to respond appropriately to threats to democracy without undermining the rationality of its decision-making. However, the article also identifies significant obstacles: (a) the weak and inconsistent application of the proportionality test in its current form, (b) the lack of a tradition of calibrated scrutiny in constitutional law and the challenges already observed in its application within administrative law, and (c) institutional limitations to implementing complex decision-making models, such as the judiciary’s high caseload. The article concludes that adopting a hybrid model in Brazil would require not only methodological and institutional improvements, but possibly also broader changes in the country’s legal culture.