A year ago I published my first article in this space. On that occasion, I turned to Adam Przeworski to discuss what we expect from democracy and what its main challenges are. Among these, I mentioned the scenario that was emerging with the return of the President of the United States and the fraud in the Venezuelan elections.
In this first column of 2026 I turn to Przeworski again. In analyzes different models of constitutional control and the countermajoritarian role of the courts that carry out ex-post review, that is, on laws already approved by the Legislature (the model we adopted in Brazil).
Based on extensive comparative empirical evidence, the authors find no correlation between the existence of this type of judicial review and greater protection of the rights of women or ethnic minorities, nor any systematic effects on economic growth. What appears consistently is another association: countries with ex-post judicial review tend to have greater income and wealth inequality.
The central argument dialogues with an ancient tradition of political thought. From Locke, through Madison and the Federalists, the “minority” that sought to be protected were not vulnerable groups in religious or ethnic terms, but property owners. The fear was clear: in inclusive democracies, majorities made up of propertyless citizens could use the vote to redistribute wealth and change the status quo.
According to Przeworski and his co-authors, this is precisely why political elites accept “tying their own hands” by transferring power to independent courts. Not out of altruism, but out of strategic calculation. Judicial review functions as a credible compromise mechanism: it signals to capital holders that their property rights will be protected even in the face of legislative majorities willing to change rules. The result is the protection of the property-owning minority and the elevation of institutional barriers to redistribution.
It’s hard not to see echoes of this pattern in the recent behavior of . In decisions involving large economic groups, as in the case of , the concern with the patrimonial rights of controlling shareholders seems to override the protection of small investors and affected pension funds. In this case, the protected owners are not those with investments covered by the FGC, they are the large owners of banks, companies, land and industries.
The defense of property is manifested through decisions that mitigate taxation, preserve privileges and make changes to the status quo difficult. The authors’ point is straightforward: counter-majoritarian cuts are effective in blocking transformations. Measures that survive long negotiations in the Legislature still face a last ditch.
When this trench travels in jets, attends exclusive dinners, gives well-paid lectures, is tolerant of ethically questionable practices, such as conflicts of interest and non-transparent relationships with large businesspeople, and still resists moving towards stricter codes of conduct, confidence in the impartiality of the courts dissolves.
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