Judicial Democracy

Now that the Supreme Court has thrown a neo-Kahanist off the ballot for racist incitement, we are hearing the usual cries about judicial autocracy. We are advised that judges have no business intervening in such political matters, that the High Court imperils democratic norms when it does so.

But judicial review has firm roots in democratic governance as it is actually practiced in countries with independent courts. This observation applies no less to Israel, where judicial review of legislative acts dates only from 1995, as to the United States, where it was established in 1803. In fact, the need for judicial review may be greater in Israel than in America.

The constitutional scholar Rivka Weill has studied the comparisons extensively. Her work should excite all of us who care about the rule of law in both countries. Her most recent article is called, Rivka Weill, The Strategic Common Law Court of Aharon Barak and its Aftermath: On Judicially-led Constitutional Revolutions and Democratic Backsliding, designated for publication at the Law & Ethics of Human Rights (2019). It is available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3296578.

This fascinating piece contains a comparison of the 1995 Mizrahi Bank decision, published shortly after PM Rabin’s assassination, and the American Supreme Court’s ruling in Marbury v. Madison, in which the American Supreme Court first claimed the power to invalidate acts of Congress. In both cases, as Weill describes, the respective high courts claimed sweeping powers but did not actually enter judgments that required the political branches of government to do anything. In the Mizrahi Bank case, the court claimed the right to declare a statute unconstitutional in violation of the 1992 Basic Law, Human Dignity and Liberty, but did not actually order the voiding of an amendatory law respecting creditors’ rights. The constitutional analysis did not strictly speaking decide the case. Thus, the government, not the creditors, won. In Marbury, likewise, the court while declaring a statute unconstitutional, denied Marbury’s request for delivery of a judicial commission. Chief Justice Marshall, a member of the defeated Federalist Party, in a stunning act of judicial statesmanship, used that new power to avoid a confrontation with the Jefferson administration. He decided that the statute in question may have appeared to give him authority to order James Madison to give Marbury his Commission, and thus Madison acted illegally in refusing to give Marbury the commission, but the statute could not be enforced because it was unconstitutional. Actually, the statute in question, the 1789 Judiciary Act, did not clearly do what Marshall claimed, that is,expand the direct jurisdiction of the Supreme Court to issue direct orders without an appeal pending. In any event, as in Mizrahi, the government won. Marbury never became a judge. In both cases, the courts could have avoided dealing with the Constitutional issues. They did not have to be resolved in order to decide the case. In that sense, both courts, the Israeli and the American, ignored the normal obligation of judges to avoid constitutional issues unless absolutely necessary for determining the case. They both also asserted powers without confronting anyone in power.

Both cases likewise did not claim to rely on explicit constitutional language justifying judicial review. Chief Justice Marshall claimed that it was the exclusive province of the judges to say what the law is. On that basis he held that the Supreme Court had the final say on what the Constitution meant in particular cases. He came to this conclusion even though the Constitutional Convention of 1787 explicitly refused to give Congress the power to void state laws and nowhere stated explicitly that the court’s view of the Constitution would be final. Likewise President Justice Aharon Barak looked at the so called Basic Laws passed, with small votes, by the Knesset and derived from such adoption his theory of the Israeli governmental system that the that the Knesset had the power to issue certain laws that could not be repealed in the ordinary course of legislative business. He thus concluded that the Basic Law: Human Dignity and Liberty gave the Court the authority to strike down ordinary legislation passed by the Knesset. In some respects, Barack’s argument is better than Marshall’s because The Basic Law: Human Dignity and Liberty at least contains a specific requirement that it could not be infringed except by a law that meets proportionality requirements for protecting liberty and human dignity. No such prohibition against future legislative action appears in the United States Constitution.

Further, structurally, the Israeli governmental system cries out for judicial review more than the American system. The United States has two houses of Congress which can serve as a check on each other, and an independently elected president with the power to veto legislation that he or she feels is unconstitutional. In addition, there are 50 state governors and legislatures and 50 state supreme courts with the power to review constitutional issues. The American system is complex, with many competing voices having the right to pass on constitutional issues.

In contrast, the Israeli government is unitary. Essentially the legislative and executive branches are fused in the Knesset which appoints the prime minister. There are no sub-national governments with any independent authority. Nor are there independent sub-national courts or sub-national constitutions like our American state constitutions which may contain rights that are not protected by the US Constitution. For example, the right to a free public education is protected by many state constitutions but the US Supreme Court has explicitly rejected the contention that such a right exists under the Federal Constitution. There are no such checks and balances in the Israeli governmental system.

For that reason, judicial review becomes a far more important tool for limiting the tyranny of the majority in the Israeli polity than in the United States. In fact, after Marshall declared part of the Judiciary Act unconstitutional in 1803, the Court did not strike on another statute for 49 years.

Also relevant is the development of judicial review as a feature of many functioning democracies. Barak was correct in his commentary that judicial review has become embedded in the constitutional framework of many countries. There has been thus a general recognition that impassioned majorities can trample human rights and that the passions of transient coalitions should be subject to check by the courts as a matter of last resort. Witness Hungary, Cambodia and Turkey today.

In that sense, the Madisonian theory of checks and balances can be implemented through judicial review even if Madison himself, the father of our American Constitution, never explicitly or even implicitly endorsed judicial review. In fact, lawyers in the United States and in Israel should be proud of the stance of the Israeli Supreme Court and its willingness to serve as a check upon the otherwise unbridled powers of the Knesset. Without such a check, majority tyranny could well undermine the democratic rights expressed in the Israeli Declaration of Independence and in basic laws such as the Basic Law protecting human dignity and liberty. As Sir Thomas More said in the film A Man for All Seasons, I give the devil due process of law for my own safety’s sake. And the courts in Israel as elsewhere provide the means of assuring that safety. Thus, judicial review, preserves, not undermines, democratic government.