Damares Medina (Instituto Constituição Aberta) has posted The Deferred Court: Non-Decision as Fiscal Power in Brazilian Constitutional Adjudication on SSRN. Here is the abstract:
Who benefits when a court does not decide — and who bears the cost of waiting? This article develops judicial non-decision as an autonomous analytical category within constitutional theory and the political economy of adjudication. Distinct from the agenda exclusion theorized by Bachrach and Baratz and from the prudential avoidance associated with Bickel’s passive virtues, judicial non-decision is an intra-procedural mechanism: a claim enters the judicial system, is processed, and remains without substantive resolution through procedural or jurisdictional classifications that the court retains the authority to reverse. Non-decision, in this sense, is neither mere omission nor a synonym for delay. It is an institutional mechanism with strategic and distributive effects: it maintains the status quo, defers fiscal exposure, and preserves the court’s authority to intervene later, under conditions shaped by the accumulation that the deferral itself has produced.
The analysis combines a corpus-level institutional baseline with qualitative process tracing. The corpus comprises 2,927,525 rulings associated with 2,212,761 unique cases and issued by the Brazilian Supreme Federal Court (Supremo Tribunal Federal, STF) from 2000 through March 2026. At the decision level, 34.9 percent of the Court’s output consists of dispositions that do not reach the merits, 86.4 percent of rulings are monocratic, and the Court’s presidency filters 73 to 76 percent of extraordinary appeals at the admissibility stage. These aggregate figures do not, by themselves, demonstrate strategic conduct. They establish the institutional baseline within which the relevant subset is identified through three case clusters: the FGTS inflationary purges, the use of the Reference Rate as the FGTS correction index, and the precatório public-debt regime.
Across these cases, a recurrent five-phase morphology emerges: exclusionary qualification, peripheral accumulation, inflection, sovereign requalification, and redistributive modulation. The framework does not presume a unitary State, coordinated institutional intent, or consistent public-sector victory. Public institutions, courts, governments, taxpayers, and private claimants may all incur losses. The mechanism lies in the asymmetric distribution of their capacity to transfer those losses across institutions, actors, and time. This places judicial non-decision in direct dialogue with the theory of extractive institutions: an arrangement may remain collectively costly while concentrating localized and immediate advantages in actors able to preserve liquidity, control procedural time, or sustain litigation, and dispersing its costs among claimants, future administrations, taxpayers, and the judicial system. Judicial non-decision is thus the generative mechanism of fiscal risk constitutionalism: it creates the temporal conditions under which fiscal exposure becomes divisible, transferable, and subject to later sovereign reallocation.
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Lawrence Solum