This paper critically addresses the argument that constitutional courts may be democratically qualified as representatives of the people through its distinctive argumentative practice. I put into scrutiny Robert Alexy’s idea of argumentative representation and try to encapsulate it in the theoretical context of expansion of the senses of representation to non-electoral instances, such as participatory institutions of civil society, councils or social movements. Drawing examples from the Brazilian Supreme Federal Tribunal, I argue that this representative claim is situated at the heart of a paradox between the defense of fundamental rights and the necessity of a peculiar connection between the court and majoritarian interests. From a theoretical standpoint, the argument for a representative court seems to deepen the principle of distinction, as conceived by Bernard Manin, since it reinforces a mystical and esoteric foundation of judicial power that further distances this institution from the people, who happens to be devoid of minimally effective accountability mechanisms. I also argue that the idea is based on a flawed conception of deliberative democracy that aims at resolving the conflicts inherent to democracy itself, and tends to deepen social passivity. From a practical standpoint, I show how this misconceived idea is being incorporated by the rhetoric of Brazilian justices.
