How do the judges decide? Rereading Gretchen Helmke’s work on the logic of strategic defection

Abstract

This paper analyzes the current phenomenon of judicialization of politics and politicization of justice –linked to the term
Lawfare–, trying to understand how judges decide, with the help of the logic of strategic defection proposed by Professor Gretchen Helmke. The author concludes that the Judicial Power demonstrates its independence from political power in each decision of the Supreme Court and in each judgment of the lower organisms, which does not imply that such measures are ideologically neutral. Now, the viability of a social change will not only depend on the good selection of judges or the text of the Constitution or the laws, but on the success achieved by the discourse that proposes a model of a social and democratic State, in the struggle in the ideological terrain for the predominance in the construction of the meaning of the law.