When the judiciary fights the legislature, who wins?

For 51 weeks every year, Yale Law School is a bastion for resisting the approach known as judicial supremacy that gives the American Supreme Court the last word in constitutional debates. But for one week each year, known as “the Global Constitutionalism Seminar,” the school becomes a hub for courts’ admiration and judicial supremacy.

During this week, judges from all around the world gather and discuss with Yale faculty, mostly in closed seminars, constitutional questions. During the rest of the year, constitutionalism is understood at Yale as a dialogue between the people, their representatives and judges, but during the Global Constitutionalism week it becomes the sole possession of judges. No foreign politicians or public leaders are invited, only judges and the idea that the people need to have the last word in constitutional questions dissipates into the mist of the cold New Haven autumn.

Since the first time I attended the open events of this seminar as a student at Yale, I was baffled by this disparity. The picture presented during this week is that outside the US, judges function as Jedi knights (with academic scholars as their sidekick) who must hold the last word in their brave fight as a counter-majoritarian safeguard against populist majorities.

During the rest of the year, when the US constitutional system is discussed, the story is complex and nuanced. Conservative Justices of the Supreme Court are certainly not regarded as Jedi knights, and scholars’ role is to raise serious normative problems against the idea that unelected judges possess the last word in deeply contested questions. Americans can of course amend the Constitution in order to overrule the court, and yet the amendment process is so cumbersome that the problem of judges holding the last word in constitutional interpretation is understood as a serious democratic problem.

I was not alone in my bewilderment in the face of the difference between how the American Supreme Court is treated in comparison to other national high courts worldwide. In 2012, I convened a reading group with other doctoral students at Yale who earned their first law degree outside the US to try and decipher why the resistance to judicial supremacy applies only within the US borders. The rise of judicial power in Israel played a major role in these discussions because Israel has always served as exhibit A in accounts of the rise of judicial power worldwide.

I am no supporter of the Netanyahu government. I never voted for a right-wing party. I am ashamed that Israel’s minister of national security is Itamar Ben Gvir who for years prided himself on having in his living room a picture of a Jewish terrorist who massacred 29 Palestinians. Yet I view with great concern the moves of the Israeli Supreme Court in recent decades that have consistently undermined the voice of the people.

The clash between the Netanyahu government and the court is soon to reach another boiling point. In September, the Supreme Court is scheduled to hear petitions against two amendments to Israel’s Basic Laws. These petitions will decide the question of who has the last word in Israeli democracy.

In 1995, the Israeli Supreme Court adopted the “constitutional revolution” thesis which was the brainchild of the president of the court at that time, Aharon Barak. According to Barak, the two Basic Laws that were enacted in 1992 and anchor several central human rights together with nine previous Basic Laws that deal with the structure of government constitute together Israel’s constitution. Yes, you may have read that Israel lacks a constitution but that is not true, at least according to the court.

The declaration that the Basic Laws are Israel’s unfinished constitution was essential for the court in order to expand its authority so it can strike down legislation that contradicted the Basic Laws. Yet in those years, the court emphasized that the last word remains in the hands of the Israeli people, whose representatives in Israel’s parliament – the Knesset – could always amend the Basic Laws.

Yet, 10 years after the first constitutional revolution, at a time when Netanyahu was not the prime minister, Barak started discussing the idea that the court would have the power to strike down Basic Laws. After his retirement, the court has continued to develop this idea and now it seems more than likely that for the first time in Israel’s history, it would strike down one of the amendments to the Basic Laws that the Knesset recently legislated as part of the government’s constitutional overhaul plan.

The court that declared Israel’s Basic Law are its constitution would now monitor the constitution’s borders. While after the constitutional revolution, the people and their representatives could still amend the Basic Laws if they were unhappy with a judgment, if the court strikes down an amendment to the Basic Laws, the Israeli public would be deprived of having the last word. Just imagine that following a constitutional amendment anchoring the right to abortion, the American Supreme Court decides to strike it down.

Supporters of the Court explain that the Basic Laws are easily amended and without an authority to strike them down, Israeli democracy would be defenseless. Yet the court did not contemplate striking down Basic Laws until Barak raised this idea almost 20 years ago. Even the court’s authority to strike down “regular” laws did not exist (except in very narrow situations) before 1995. And yet Israeli democracy somehow survived.

The first generation of Israeli Supreme Court judges – some of whom witnessed in person the collapse of Weimar democracy – wrote that if the Knesset would ever try to annihilate democracy, they would intervene even if that meant going beyond their authority and striking down laws. However, they never created a complete theory that positioned themselves above the Knesset insisting that they would have the last word. The current court’s insistence on possessing the last word is partly responsible for the elected government’s constitutional overhaul plan. The backlash against the court is not due to the majority of Israelis losing their minds. It is a controversy on who has the last word in a democracy. While the judges in the Global Constitutionalism Seminar may celebrate their Israeli counterparts as heroes after they declare they possess the last word, the celebration will not be on saving Israeli democracy.