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Pamela Laufer-Ukeles
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Can Israel have its Marbury v. Madison moment?

Israel's Supreme Court should borrow from John Marshall to create balance and avoid a 'constitutional' crisis
Inscription on the wall of the United States Supreme Court Building from Marbury v. Madison, in which Chief Justice John Marshall (his statue in the foreground) outlined the concept of judicial review. (Wikipedia)
Inscription on the wall of the United States Supreme Court Building from Marbury v. Madison, in which Chief Justice John Marshall (his statue in the foreground) outlined the concept of judicial review. (Wikipedia)

For the last few years, I have been teaching a course called “Intro to Anglo-American Law” to Israeli law students. I generally teach it as a study in comparative law, comparing important US precedents with Israeli laws and cases, but the first case we analyze is Marbury v. Madison. And that case has no equivalent. It is the grand case that originated the concept of judicial review.

Here’s what happened. It was 1800 and there was a huge difference of opinion between the Federalists and the Republicans in the US. The Federalists, led by John Adams, believed in a strong federal government that could impose its will on the states. The Republicans, led by Thomas Jefferson, advocated for strong state’s rights that would be able to fend off the dictates of a federal government. The federalists controlled the government under John Adams (1797-1801), who was a political philosopher extraordinaire. Even when serving as vice president under George Washington, who was less ideological and more pragmatic, Adams had an impact. Then, in 1800, Adams lost the presidential election to Jefferson.

Before leaving office, Adams attempted to appoint as many judges as possible, in order to entrench his federalist ideology within the judicial system. Some of these appointments were approved and went through and some got stalled and did not. Marbury was appointed to be a federal judge in 1800 and his appointment was approved by Congress. However, before he was officially appointed, Jefferson came to office in 1801 and refused to formally accept the commissions approved by Congress, leaving Marbury in a state of limbo. So, Marbury sued James Madison, the secretary of state under Jefferson who was refusing to deliver the commissions, in the Supreme Court of the US, arguing that, as his appointment was already approved by Congress, he must be appointed formally as a federal judge.

Accordingly, in its first 20 years of existence, the US was faced with a constitutional crisis. On the one hand, Marbury was absolutely correct from a procedural standpoint. The Constitution clearly indicates that once a judge is selected by the president and approved by Congress, she must be appointed a judge. On the other hand, there was no way that Jefferson was going to allow the appointment. John Adams tried to stack the courts and Jefferson was not going to play along. So, if John Marshall, the chief justice of the Supreme Court and a federalist himself, were to decide that Marbury was right and that Jefferson had to appoint him, there would have been conflict the likes of which the fledgling country had not yet seen.

Marshall and the US Supreme Court were stuck between a rock and a hard place. If they did not appoint Marbury, the Court would seem weak and ineffective. If they did appoint Marbury, it would be rendered weak and ineffective by a resolute Jefferson.

Luckily for the US, John Marshall was a jurist of incomparable talents. He was not going to go up against Jefferson, but he also knew that it was up to him to ensure that the US had a strong and independent judiciary. So he navigated through dangerous waters and saved the judiciary without butting heads with Jefferson.

Marshall determined that section 13 of the Judiciary Act of 1789, which gave the Supreme Court original jurisdiction in matters of judicial appointments, was unconstitutional because it expanded the constitutional authority of the Supreme Court as a court of appeals. Through this holding, Marshall avoided a constitutional crisis – because he refused to decide on the merits of the case, which was instead sent to be reviewed by the district court.

Review by a district court, and then an appellate court, and then maybe the Supreme Court, in its turn, would take too long to make the process even worth undertaking, and so Marbury never becomes a judge. However, the decision announced for the first time that judicial review — the power to determine the constitutionality of laws passed by Congress — was the exclusive authority of the judicial system. Justice Marshall lost the battle, but won the war: only the legislature can create the law and legislate — but only the courts can determine if such legislation violates the Constitution.

This is a separation and balance of powers that has supported a liberal democracy with individual rights and political power to the president and legislature simultaneously, while keeping judicial power independent and impactful.

Marbury v. Madison was a triumph. It avoided a constitutional crisis. It created a strong and independent judiciary. And the case has been a light onto nations who have adopted its holding.

Now, how does Israel get its Marbury v. Madison moment? One might argue we already had that moment. In 1995, Justice Aharon Barak in United Mizrahi Bank v. Migdal Cooperative Village, held that the Israeli Supreme Court had the power to determine whether a law passed by the Knesset was consistent with the Basic Law of Human Dignity and Liberty (1992) – and, if not, the court could strike down the law. In that particular case, the court determined that the law was consistent with the Basic Law and did not strike the law; the power of judicial review was created, however, and since then has been used.

But that was not Israel’s constitutional crisis. The constitutional crisis is now. The Basic Law that has been passed that removes the power of the court to strike administrative decisions due to their being unreasonable – and the concern that if this Basic Law is struck down by the Supreme Court, the coalition will not heed the law — is Israel’s constitutional crisis. If the 15 member court strikes down the Basic Law, there is likely to be a direct conflict between the judiciary and the coalition ruling the legislature. If the court does not strike the law, it sets a precedent that will likely lead to the eviscerating of the independent power by passing the remaining legislation that makes up the “judicial overhaul,” changing how judges are appointed and weakening the court drastically in a manner that is likely to make the legislature all powerful.

How can the Israeli Supreme Court have its Marbury moment, following in Marshall’s footsteps? I will not presume to be able to meet the wisdom of Marshall or the Supreme Court Justices of Israel or the US.

However, I will suggest some possibilities.

  • First, a constitutional crisis can be avoided if the Israel Supreme Court decision divides the power. The Court could argue that a law eliminating administrative review of ministerial decisions violates the Basic Laws of Israel — such as the Law of Human Dignity and Liberty — because it permits unrestrained governmental decisions that may be arbitrary and capricious, based on fraud, manipulation and insider dealings, that may create unsuitable appointments that will harm the human dignity and liberty of those impacted by those appointments.
  • The court could also concede that political decisions that others argue are not “reasonable,” but which are based on valid policy objectives, would not violate the Basic Laws of Israel and could be upheld. Thus, the Supreme Court could effectively allow a modified version of the legislation, closer to what was under consideration and in the compromises discussed by the opposition and the coalition before the vote. Appointments and decisions that are capricious and arbitrary would violate the Basic Laws of Israel, but policy determinations based on valid and proportionate goals — even if some deem them unreasonable – could not.
  • Another option is to strike down the law on procedural grounds, but leave the possibility of a law of its kind being passed if it is processed correctly. The Supreme Court could argue that there is nothing in the Basic Law: Government that allows it to define the powers of the Basic Law: Judiciary – as each governed by different Basic Laws. Therefore, a law passed by a simple majority by the government to curtail the judge-made powers of the Supreme Court cannot be valid. Instead, the Supreme Court might argue that a constitution, adopted by a supermajority of the state, and which creates an explicit balance of powers must be passed before either branch of government can limit the other. This would force the parliament to roll up their sleeves and come to a compromise.

There are many different iterations of these two options that Israeli constitutional scholars and our highly qualified Supreme Court judges might consider. But the goal I am suggesting would be for the Supreme Court to use the decision to do what politicians sometimes cannot. Find a way to avoid a crisis and create balance and stability in the government.

About the Author
Pamela Laufer-Ukeles is Professor of Law and Health Systems Administration at the Academic College of Law and Science in Hod Hasharon, teaching feminist legal theory, bioethics, health care reform, and elder law among other subjects. 
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