Selective friendship: Strategic analysis of amicus curiae functionality

Abstract

ABSTRACT: This paper analyzes strategically and empirically if the amicus curiae has effectively performed the functions presented by doctrinal and jurisprudential discourse of democratically legitimizing and expansion of court’s background information, or if this figure has served to other interests. The results of the empirical analysis – using data from judicial review processes with participation of at least one amicus curiae judged by STF between 1990 and 2017 – corroborate the standards identified in the strategic analysis and reveal that the Brazilian Supreme Court makes strategic use of amicus curiae, citing more of those types that bring greater diffuse support with public opinion to the Court (amicus curiae representatives of civil society) and to be more influenced by participants with greater institutional bargaining power and argumentative and informative credibility (amicus curiae governmental organizations). It follows, therefore, that the Court is “friendlier” to some types of amicus curiae than to others

Keywords

• direito constitucional
• amicus curiae
• jurisdição constitucional
• análise estratégica