PROBLEM OR SOLUTION? THE ROLES OF THE BRAZILIAN SUPREME COURT AND THE NATIONAL COUNCIL OF JUSTICE IN HEALTH LITIGATION

Abstract

The Federal Supreme Court has become an indispensable actor in the formulation and execution of public policies. One of the social policies that most involves the Court in this function is public health. Especially as a court of appeal, the Court has seen the volume of health cases grow significantly in the last 20 years. Throughout this period, its jurisprudence and its institutional performance were at the same time a response to and a cause for this growth. On the one hand, the Court has not been sensitive to larger policy arguments when it systematically favors individual demands requiring the provision of medicines, supplies, and treatments. On the other hand, through its control of the National Council of Justice, the Court has been more sensitive to the structural considerations that underlie any individual case. The Council not only created interdisciplinary committees to reduce and qualify the “judicialization” of health, but also monitored the performance of judges and lowers courts. Moreover, it has increasingly required that judicial decisions incorporate policy justifications into their reasonings. In this article, I argue that understanding the Court's contradictory positioning is an essential step in the process of understanding the phenomenon of the “judicialization of health” in Brazil. Either as "part of the problem" or as a "manager" of the problem’s "solution", the Court holds the unique position of possibly setting large parts of the institutional incentives that underpin the decisions of other judicial bodies in the country. However, if the Court is incapable of guiding judges and lower Courts towards a clear argumentative path, it loses the opportunity to affect and control the phenomenon and to potentially contribute to the construction of a more efficient and fair health policy.