EXPLORING THE WONDERFUL MYSTERY OF TIME: “LACK OF GROUNDS” IN THE CONSTITUTIONAL JUDICIAL REVIEW AS AN EVIDENCE OF PASSIVE VIRTUES IN THE BRAZILIAN SUPREME COURT (STF)

Abstract

Has the Brazilian Supreme Court (STF) used formal arguments to evade the judgment of conflicts submitted by the concentrated judicial review? Over the past 20 years, the Supreme Court has denied trial to a growing number of cases, citing the presence of formal defects, mainly due to the so-called incidental “lack of grounds": when, owing to the delay in assessing the conflict, alluded legal standard ceases to exist or have effect. This research starts from the Bickel’s hypothesis (1962): courts deliberately use passive virtues – self-restriction techniques, usually of procedural nature, which provide the court with the option to avoid the assessment of a case – in order to seek to understand the "lack of grounds" institutional phenomenon. In this sense, data from the Brazilian Supreme Court’s on the cases on which the "lack of grounds" was harvested were subjected of statistical inferences, in order to explain, through modeling, this omission behavior of the Court.