Deliberative performance of constitutional courts: the cases of Brazil and Colombia

Constitutional courts were ascribed and, to varying degrees, have actually played a pivotal role of implementing fundamental rights in contemporary democracies. This is all the more evidenced in several Latin American countries over the past two decades. One influential way to defend this arrangement has claimed that courts are not only insulated from electoral competition in order to guarantee the egalitarian pre-conditions of majoritarian politics, but are deliberative forums of a distinctive kind: they are better located for principled and public reason-giving. This belief has remained, from the normative point of view, largely under-elaborated and, at the empirical level, mostly untested. This research proposal sets off the empirical stage of an ongo ing long-term project in normative political theory. It builds upon an operational concept of deliberative performance previously developed and will scrutinize two particular courts: the Colombian Constitutional Court and the Brazilian Supreme Court. The goal of such a project is threefold: it further develops an ongoing theoretical discourse about the conditions for judicial activism in a democratic regime; it provides an analytical template for future comparative exercises; and it clarifies an inceptive agenda for tailor-made institutional reform of courts, mapping the contextual specificities that must be taken into account. In overall, the long-term project tries to add to the dominion of judicial studies, which have been producing crucial findings ab out the economic and social impact of courts, a different vantage point. From there one can observe a less visible and quantifiable dimension of constitutional jurisprudence, but still an elemental condition to reach a vigorous culture of rights.