Brazilian Supreme Court as arbitrer of the federation: an empirical analysis of the direct federative conflicts at the head office of primary competence of the Supreme Court (ACO)

Abstract

This paper analyzes the federalist jurisprudence built by the Brazilian Supreme Court (STF), acting as the Federation Court, in order to complement the existing studies, which are restricted to the concentrated control of constitutionality. The study begins with the empirical research of the civil actions based on the primary competence of the Supreme Court (ACO) filed between 05/10/1988 and 31/12/2019, which resulted in 2.948 actions, in order to unravel the concept of federative conflict built by the Court and to figure out how it solves the disputes between the central and the states governments. This study describes the jurisprudential evolution of the Federation Court, identifying the parties and themes that are potentially capable of establishing the so-called federative conflict, and compares it with the collected data. Moreover, by reducing the data study to the disputes between the Union and the States, it was identified that the federative conflict, thus recognized by the STF, is essentially a fiscal dispute, which discusses the redistribution of resources from the center to the states governments. Finally, by noting that States are generally the winners of such conflicts, it was possible to visualize a decentralization movement on Brazilian federalism as a result of the Supreme Court’s jurisprudence. This conclusion not only challenges the majority understanding of the doctrine, restricted to the concentrated control of constitutionality, which affirms that there is a centralist tendency in the jurisprudence of the Court, but also introduces new complexities to be analyzed on the subject of the impact of STF’s decisions on Brazilian federalism.