Revista da EMERJ - V. 21 - N. 3 - Setembro/Dezembro - 2019 - Tomo 1

 R. EMERJ, Rio de Janeiro, v. 21, n. 3, t. 1, p. 55-71, set.-dez., 2019  62 TOMO 1 Self-deception of judges as to the motives of their judicial behaviour is not impossible. The problem is that this type of misconduct does not only appear in a number of new democracies but can also be observed in mature constitutional states. The decision of the US Supreme Court in Bush v. Gore in 2000 may serve as an example. There can hardly be a legal sanction in such cases, but there may be harsh public criticism or even a loss of trust in the judiciary to which no court can remain indifferent. II. Law owes its existence to a political decision and political motives are legitimate in the process of law-making. But in a constitutional democracy the role of politics ends when it comes to applying the law. Application of the law is a matter for the legal system and in this process political motives are illegitimate. For this reason the division between law and politics is of crucial importance. But what if law application, and in particular constitutional adjudication, is in itself a political operation so that all attempts to separate law from politics on the institutional level are thwarted on the level of law application? This is a serious question, and it is a question that should not be confused with the abuse of judicial power which lies in the intentional non-application or misapplication of the law. Constitutional adjudication is of course inevitably political in the sense that the object and the effect of constitutional court decisions are political. This follows from the very function of constitutional law, which is to regulate the formation and exercise of political power, and the function of constitutional courts, which consists in enforcing this law vis-à-vis politics. Constitutional courts form a branch of government. Excluding political issues from judicial scrutiny would be the end of constitutional review. Hence, the question can only be whether operations that judges undertake in order to find the law and to apply it to political issues are of a political or a legal character. This question arises because all analyses of the process of law application to concrete issues show that the text of the law is unable to completely determine judicial decisions. One of the reasons is that the law in general and constitutional law in particular is neither void of gaps and contradictions nor always clear and unambiguous; this can hardly be different, given the fact that a legal system is a product of different times,