Selective Judicial Assertiveness in the Control of Administrative Underreach During a Health Crisis: The Case of the Supreme Court of Brazil

Abstract During the COVID-19 pandemic, the Brazil Supreme Court (STF) decided numerous legal claims seeking to compel the federal government to create and implement policies to protect public health during the crisis. The STF, in strong terms, condemned the federal government’s inaction and lack of commitment to protecting rights. However, the STF opted for a combination of “weaker” orders and juxtaposed a rights-based and federalism-based review of constitutionality to sideline the federal government and allocate decision-making to subnational governments. Building on both the literature on social rights and on judicial behavior, this Article argues that the STF strategically utilized these solutions to advance its preferred policies and affirm its commitment to rights while avoiding the costs associated with making policy and controlling policymakers.