Structural Process and Garantism: An Analysis of Supreme Federal Court General Repercussion Theme No. 698

Abstract

This article examines the compatibility between legal guarantism and judicial intervention in public policies, specifically regarding Theme 698 of general repercussion judged by the Brazilian Supreme Court. Legal guarantism constitutes a normative model for limiting state power and protecting fundamental rights. Structural litigation represents a procedural technique aimed at gradual transformation of rights-violating realities through progressive and dialogical judicial decisions. Theme 698 established parameters for judicial action in cases of serious administrative omissions in the realization of the right to health. The central question consists of verifying whether the decision represents a guarantist posture or constitutes judicial activism incompatible with the separation of powers. The general objective consists of examining the compatibility between the Supreme Court decision and the guarantist model proposed by Luigi Ferrajoli. The specific objectives comprise the analysis of guarantism as a paradigm of power limitation, the characterization of structural litigation as a technique for implementing fundamental rights, and the examination of the parameters established in Theme 698. The methodology employed is based on bibliographic and documentary research, with qualitative analysis of national and foreign doctrine and Supreme Court jurisprudence. The conclusion demonstrates consonance between the guarantist model and controlled, rational, and proportional jurisdictional intervention, showing that the Supreme Court adopted a posture that reinforces the effectiveness of fundamental rights without transgressing the separation of powers.