The role of courts in rifted democracies

Israel Law Review

Volumn 33, Issue 2, 1999, Pages 216-258

  Gavison, Ruth ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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EID: 85017613368     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700015983     Document Type: Article

References (94)

1. The literature on this subject is immense and growing. The relative autonomy of positions on these subjects can be seen in every society. Interestingly, lawyers tend to be more supportive of judicial activism than people with a stronger base in other disciplines, especially social sciences. For notable judges who opposed judicial activism see Justices O.W. Holmes (Lochner v. NY, 198 U.S. 45 (1905)
2. Learned Hand, in the US (for Hand's position see G. Gunther, Learned Hand: The Man and the Judge (Cambridge, Mass., Harvard Univ. Press, 1994)
3. Moshe Landau (for example, his dissent in Benjamin Shalit v. Minister of Interior (1968) 23(ii) P.D. 477)
4. Menahem Elon (see his opinion in Zerzevsky (1990) 45(i) P.D. 749) in Israel.
5. In England see Patrick Devlin, “Judges and Law Makers”, (1976) 39 Mod. L.R. 1.
6. A combination of progressive politics and caution regarding the role of the court can be found in Aleander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Polities (Indianapolis, Bobbs-Merrill, 1962)
7. J. Choper, Judicial Review and the National Political Process (Chicago, 1980)
8. R. Cover, Justice Accused: Anti Slavery and the Judicial Process (New Haven, Yale Univ. Press, 1975)
9. J. Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard, 1981)
10. Robert Nagel, Constitutional Cultures: The Mentality and Consequences of Judicial Review (UC Press, 1989)
11. Jeremy Waldron, Law and Disagreement (Oxford, 1999).
12. All of these individuals support strong and independent judiciaries. For a summary account of the debate in Germany see Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham, Duke University Press, 2nd ed., 1997) 55–57.
13. For Canada, see Peter Hogg, Constitutional Law of Canada (Scarborough, Carewell, 1992).
14. A plea for judicial restraint is made by Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (1994)
15. For a recent comparative analysis see Jacob, et al., Courts, Law, and Politics in Comparative Perspective (New Haven, Yale University Press, 1996).
16. Throughout I keep the discussion on a general level. My reference to cases and particular debates and issues are designed to be illustrative. For a discussion on Israel, see Gavison, Dotan and Kremnitzer, The Role of the Bagaz in Israel's Public Life (Magnes Press, forthcoming, in Hebrew).
17. The status of judicial review of legislation in Israel is controversial. See The Role of the Bagaz in Israel's Public Life.
18. This seems the position advocated by Quirk William and Bridwell Randall, Judicial Dictatorship (Transcation Pub., 1995).
19. See also R. Berger, Gouernment by the Judiciary (2nd ed., 1997).
20. See A. Bickel, Gouernment by the Judiciary.
21. See Choper, Gouernment by the Judiciary, at ch. 1
22. H.H. Wellington, The Nature of Judicial Review”, (1982) 91 Yale L.J. 486.
23. A quick move from democracy to judicial review is made, for example, by the President of Israel's Supreme Court, Professor Aharon Barak, in his lectures, articles and judicial decisions. For a recent formulation see his “The Role of the Supreme Court in Democracy”, (1999) 3:2 Israel Studies.
24. Dicey's classical text, Introduction to the Study of the Law of the Constitution (London, MacMillan, 10th ed., 1961) chap. 1, still provides an eloquent and persuasive argument for this position.
25. In both Israel and the US, we see strong critiques of judicial activism, in the name of democracy, coming from religious circles. See e.g., R.H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline (Harper Collins, 1997)
26. the “End of Democracy” debate: Muncy Mitchell (ed.), The End of Democracy? The Judicial Usurpation of Politics (1997) in the US.
27. Vile, Constitutionalism and the Separation of Powers, at 319.
28. Compare, for example, the decision of the Israeli Supreme Court on the applicability of judicial review to Presidential powers, despite an explicit denial of such review in the relevant statute, in Barzilai to the fact that President Bush pardoned all officials involved in the Iran Contra affair before he left office, and no one thought this an occasion to petition the courts. A distinction often made in this context is between judicial review of federalism-type separation, which is critical to federal governments, and judicial review of legislation concerning the scope of rights or other basic values. Holmes, for example, thought the American Supreme Court could have lived very well without judicial review over the Bill of Rights, but needed to determine questions of federalism. It should be recalled that both Marbury v. Madison, (1803) 5 U.S. (1 Branch) 135
29. the Israeli Bergman decision (Bergman v. Minister of Finance (1969) 23(i) P.D. 693) related to review of this narrow sense of “separation of powers”. This is also the basis for Justice Landau's suggestion that only the institutional questions should be constitutionalized in Israel, and subjected to careful judicial review.
30. See his A Constitution as a Supreme Law for Israel, (1970).
31. See Dicey's sensitive, and relevant discussion of the relationship between various kinds of constraints on political power: A Constitution as a Supreme Law for Israel.
32. See the discussions of the inadequacy of Marshall's reasoning in Bickel, A Constitution as a Supreme Law for Israel, at ch. 1
33. Robert L. Clinton, Marbury v. Madison and Judicial Review (1991).
34. The legitimacy of judicial review of primary legislation may be based on explicit provisions in the constitutions, as in Canada and Germany. Kommers, Marbury v. Madison and Judicial Review, at 55, mentions that the clear constitutional mandate, and the fact judges of the constitutional court are elected by the political branches for 12 year terms are reasons that explain the support for its power of review.
35. I cannot go into this important subject here. For a more elaborate account, see Gavison, The Constitutional Revolution: A Reality or a Self-Fulfilling Prophecy? (Jerusalem, The Israel Institute for Democracy, 1998, in Hebrew).
36. The tendency to weaken the distinction between the conceptual, descriptive and normative claims about adjudication is indeed a central feature of Dworkin's theory, which he sees as one of its main advantages, and his critics present as one of its major drawbacks. A recent formulation of Dworkin's position can be found in Law's Empire (London, Fontana Press, 1986).
37. For Dworkin's defence of the court in Roe v. Wade see Life's Dominion (New York, NY, Knopf, 1993).
38. For a critique of that decision in terms of the role of the court, by a person sympathetic to the decision on its merits, see Ely, “The Wages of Crying Wolf: A Comment on floe v. Wade”, (1973) 82 Yale L.J. 920.
39. It is interesting to note that even CLS people, or those who argue for other reasons that laws cannot bind, do not have to support judicial activism, if this is meant as a judicial tendency to replace the decisions made by the authorities in whom the original decision-making power is vested. Such scholars will have their own descriptive and normative theories of adjudication, and these may not necessarily require or justify judicial activism. A clear example is the progressive critique of the US Supreme Court's Lochner line of decisions. A similar critique is made today when courts seek to undermine legislative progressive decisions. For a critique of adjudication in such terms see D. Kennedy, A Critique of Adjudication (Cambridge, Mass., Harvard Univ. Press, 1997).
40. While the German analysis of the functions of courts remain much more “conservative”, they too find ways of explaining and justifying judicial creativity: Kommers, A Critique of Adjudication, at 124–131.
41. As I indicated above, there are legal philosophers who claim that no actual judicial decision is dictated by pre-existing laws. In part, because general propositions do not decide cases, and in part because when there is a tension between the apparent requirement of a law and common-sense understandings of the desirable result, most judges can use judicial techniques to reach a subjectively acceptable decision. But even Dworkin concedes that determination of sentencing in specific cases is not totally determined by pre-existing laws. Child custody decisions are notable examples of judicial decisions which cannot be dictated by legal norms. And the fact that Dworkin congratulates the court for decisions such as Roe v. Wade or Casey, and warns, for example, against judicial decisions opposing affirmative action (see his “Affirming Affirmative Action”, N.Y. Rev. Books, October 22,1998
42. “Is Affirmative Action Doomed?”, N.Y. Rev. Books, November 5, 1998), indicate that he recognizes both the doctrinal constraints of judges and the great social consequences of their decisions. If all the decisions constitute is the application of pre-existing laws, it is unclear why these consequences should be so great. The increasing tendencies of judges to seek compromises between parties is also a judicial function which does not consist of the application of pre-existing laws.
43. This account of the functions of law is based on Joseph Raz, “The Functions of Law”, in The Authority of Law. Essays on Law and Morality (Oxford, Clarendon Press, 1979) ch. 3.
44. For a functional and comparative analysis of courts and their unique function see Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago, Univ. Chicago Press, 1981).
45. To use the apt phrase of H.L.A. Hart, The Concept of Law. (Oxford, Clarendon Press, 1960).
46. See the discussion of P. Hogg, The Concept of Law, commenting on the problematic nature of advisory opinions. The US Supreme Court has decided against exercising this power.
47. Kommers, The Concept of Law, at 57, seems to support the position that the Constitutional Court would be better off without “abstract judicial review” (a position not shared by members of the court itself).
48. Reprinted in (1978) 92 Harv. L.R. 353.
49. For the meaning of acoustic separation arid its functions see Meir Dan-Cohen, “Acoustic Separation in Criminal Law”, (1984) 95 Harv. L.R. 625–677. The court's reasoning is public and open. It must be based on principles that can be articulated and justified. In situations in which such principles may not be available-, it May be better to leave the decision ‘to l'ow visibility mechanisms, less committed to publicity and principled decisi'on-making.
50. See C. Sunstein, Legal Reasoning and Political Conflict (Oxford, 1996)
51. F. Shchauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Oxford, Clarendon Press, 1991).
52. The famous Brown v. Board of Education decision of 1954, in which the US Supreme court ordered desegregation of schools, is a case in point. Only when the political will joined the judicial decision did desegregation materialize, and once the political will waned — schools hegan re-segregating. For a sharp analysis see Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago, Univ. of Chicago Press, 1991).
53. The U.S. Supreme Court could have decided Dred Scott the same way without “volunteering” its offensive analysis: see Dred Scott v. Sanford, 60 U.S. 393 (1857)
54. Bickel's analysis of the decision in “Citizen or Person? What is not Granted Cannot be Taken Away”, in The Morality of Consent (Yale, 1975), 31.
55. Plessy v. Ferguson 163 U.S. 537 (1896) should have been decided differently, on the lines of the dissent, without suggesting that the law should force mixing and integration.
56. In a situation like Korematsu (Korematsu v. U.S., 323 US 214 (1944)), where the U.S. Supreme Court was asked to uphold the detention of Japanese civilians during the Second World War, it would be best for the court to invalidate the orders. If they could not do that — a political question approach like Jackson's is much less damaging to the court than an explicit justification of the measures on their merits. This is one of the points on which I feel the Israeli Supreme Court has made itself too vulnerable by seeking to examine all issues on their merits.
57. See D. Kretzmer, “40 Years to Israel's Administrative Law”, (1990) Isr. L.R.
58. This frame of mind may have produced the most criticised Supreme court decision to date: Roe v. Minister of Defence, 13 November 1997 (not yet published), in which President Barak for the court upheld the continued administrative detention of Lebanese citizens, captured in various circumstances, so they could serve as “negotiating cards” in Israel's attempt to free its POWs held by Lebanese organizations. Justice Dorner, in dissent, invalidated the detention under the administrative detention law, and suggested that, if at all, it might be justified under the laws of war. President Barak, on the other hand, concluded that the decision was the right balance, in the circumstances, between human dignity and state security. The matter is now pending before a larger panel. (An English translation of the decision can be found on the web site of the Minerva Center for Human Rights, the Hebrew University of Jerusalem).
59. Modern times see quite an expansion of the judicial role for all of these reasons. For an account see Mauro Cappelletti, The Judicial Process in Comparative Perspective (Oxford, Clarendon Press, 1989).
60. These are, on purpose, conditionals. In fact, many critics of expansive courts suggest that they should make judgements on neither the morality of actions nor on complex social processes and consequences. While Brandeis introduced the factual brief showing consequences of alternative policies and decisions many decades ago, not all judges feel comfortable with the court becoming the forum of explicit legislative judgements of social utility. Note that in Lochner, The Judicial Process in Comparative Perspective, the majority of dissenters relied on the factual plausibility of the legislation in question, while Holmes dissented because of a second-order principle of a strong presumption in favour of judicial deference, which required no independent detailed analysis of social facts by the court. Nonetheless, Holmes himself counselled for candor, and encouraged judges to concede the legislative and policy-oriented nature of many of their common-law decisions.
61. See his “The Path of the Law”, (1897) 10 Harv. L.R. 457
62. my discussion in “Holmes' Heritage: Living Greatly in the Law”, (1998) 78 Boston Univ. L.R. 843.
63. For a sensitive account see, e.g., Adam Przeworski, “Democracy as a Contingent Outcome of Conflicts”, in Elster and Slagstaad, eds., Constitutionalism and Democracy (1988), at 59.
64. It is one of the strengths of the American process of constitution-making that these insights are present in very clear form in the Federalist papers. See the perceptive discussion in Paul Kahn, Legitimacy and History: Self-Government in American Constitutional History (New Haven, Yale, 1992).
65. Such cases are likely in rifted societies, and especially in societies where minorities are persecuted by the majority, and excluded from the decision-making processes. Progressive laws are made by the majority to protect itself, but are not applied to the minority. An example of such move is the fact that most right-wing politicians and lawyers in Israel object to the use of administrative detention against Jewish activists, but they do not move to repeal the legislation, since they think there are very good reasons for using the measure against Palestinians. Similar double standards are reflected in their attitudes to the interrogative methods used by the security services. See D. Kretzmer, “The Right Discovers Human Rights”, in Eugene Cotran and Chibli Mallat, eds., The Arab-Israeli Accords: Legal Perspectives (Kluwer Law International, 1996).
66. G. Spann, Race Against the Court (New York, NYU Press, 1993), who argues that the courts have not protected blacks where such protection was not supported by the majority.
67. See also Choper, Race Against the Court.
68. This is fully consistent with the majority being very angry with the court for not letting it have “blood”. Ulyssess was angry with his sailors for not letting him go to the sirens. This is the sense in which the U.S. court failed in Korematsu, Race Against the Court, and the Israeli Supreme Court failed in the case of the deportation of the 415 Hammas activists, and the Israeli Supreme Court failed in the case of the deportation of the 415 Hammas activists in 1992
69. Association for Civil Rights in Israel v. Minister of Defence (1992) 47(i) P.D. 267. There may be powerful political constraints which may make courts likely to fail in this way. Under such circumstances, they should at least not legitimate the decision on the merits. The Israeli decision in the deportation case meets this secondary requirement. At times, judges justify their decisions to reject a demand by the majority by arguing that the demand is a momentary ‘call for blood’ when this description is not applicable. In such cases, we should beware of dismissing the arguments made on behalf of the majority too quickly. This is the way I see Justice Barak's claim that the court must defend the freedom of speech of the likes of Kahane because the public outcry against him is an instance of “transitional ill spirit”. I do not see the prohibition of blatantly racist speech as a semi-lynching situation. This is an extremely complicated question, open to debate, but de-legitimation of the attempt to prohibit such speech cannot be justified.
70. See P. Strum, When the Nazis Came to Skokie (1997).
71. The question of slavery until the reconstruction is the most obvious example of this situation. See the perceptive discussion of the predicament of anti-slavery judges in Cover, When the Nazis Came to Skokie.
72. For a general discussion see Gavison, “The Right to be Elected and the Lessons of History”, in Gavison and Kremnitzer, eds., Gvurot Le-shimon Agranat (Jerusalem, Graph Press, 1987, in Hebrew). The bottom lines of the decisions of the Israeli court on this sensitive matter are positive: Arab parties voicing a national message and religious parties are both allowed to participate, while the law against parties which are anti-democratic, racist or denying that Israel is the home of the Jewish People was used to ban Kahane's party, based on its support for the denial of political rights to non-Jewish citizens of Israel. After the Weimar trauma, Germany included the power to ban anti-democratic parties in its basic law, and the law was invoked in the 1950's to ban both the neo-Nazi and the Communist parties. These decisions were criticized, and the law has not since been invoked.
73. Justice Cheshin stresses this special group of cases in both his long decision concerning the question of the existence and justification for an entrenched constitution in Israel (Bank Hamizrahi Hameuhad Ltd v. Migdal (1993) 49(iv) P.D. 221)
74. in his dissent in Merkaz Hashilton Hamekomi v. The Knesset (1995) 50(iii) P.D. 490. I believe he is right that in the latter case, there was a clear indication for judicial invalidation of the challenged legislation, in which present-day legislators granted their colleagues unique advantage over new competitors.
75. See e.g., Ely, P.D.
76. The latter invalidated a law legalizing abortion, based on the constitutional right to life. For a detailed discussion see G. Neumann, “Casey in the Mirror: Abortion, Abuse and the Right to Protection in the US and Germany”, (1995) Am. J. Comp. L. 273 and sources cited there.
77. For the Canadian case see Hogg, Am. J. Comp. L.
78. Mandel, Am. J. Comp. L., at pp. 405–454.
79. See the criticism of some of the applications of the law granting rights to disabled persons in P.K. Howard, The Death of Common Sense: How the Law is Suffocating America (New York, Random House, 1994).
80. See the discussion of the costs of expansive rights talk in Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (Free Press, 1991).
81. See the fascinating discussion in Rosenberg, Rights Talk: The Impoverishment of Political Discourse.
82. Both are criticised e.g., in Bork, Rights Talk: The Impoverishment of Political Discourse, at 99–102 and 172–192 respectively. But only the decision on abortion (and euthanasia and gay rights) elicited the vicious attacks on the legitimacy of the U.S. Supreme Court in the First Things Debate. I believe that the Israeli Supreme Court could have (and should have) decided otherwise in both the deportation case
83. Rights Talk: The Impoverishment of Political Discourse
84. and the hostages case (Rights Talk: The Impoverishment of Political Discourse).
85. See Feely, et al., eds., The Impact of Supreme Court Decisions.
86. Korematsu, The Impact of Supreme Court Decisions, and the English decisions regarding freedom of movement of aliens belonging to enemy countries are good examples.
87. Compare also the different treatment given to Nazis and communists during the Weimar period, Gavison, The Impact of Supreme Court Decisions.
88. For present realities in Israel, see Kretzmer, The Impact of Supreme Court Decisions. It should be noted that in most countries, emergencies are of short duration. In Israel, the system has been operating under a state of emergency since its inception. It produced mainly judicial restraint, judicial deference to the security authorities with very few notable exceptions.
89. This is more or less where the American court ended up after the New Deal period. In Canada the situation is still fluid, despite the fact that they have explicitly taken the right to property out of the Bill of Rights. See Mandel, The Impact of Supreme Court Decisions, especially at 259–336. In Israel, the right to property was included in Basic Law: Human Dignity and Freedom without much thought, and it is combined with the fact that the right protected most strongly is that of freedom of occupation.
90. The initial directions seem to be a systemic position supporting free market forces, Aharon Barak, “The Economic Constitution of the Sate of Israel”, 4 Mishpat u-Memshal 357
91. E. Salzberger and S. Keidar, “The Quiet Revolution — More on Judicial Review Under the New Basic Laws”, Mishpat u-Memshal., at 489, but it is much too early to predict how matters will develop.
92. A good example of controversial decisions not connected to structural rifts are those concerning custody of children or arrangements of surrogacy. See e.g., Nahmani v. Nahmani (1995) 49(i) P.D. 485, in Israel. These are hard decisions, especially when they are not regulated clearly by the law. But they need to be made, and the main obligation of judges in such cases is to be candid, and refrain from presenting the cases as if they raise legal issues. Judges have residual powers to decide these cases, and they should exercise them to the best of their abilities.
93. See the comprehensive and subtle account of G. Spann, P.D.
94. Judges cannot undermine the security efforts of “their” society when it is fighting against others. The Israeli courts are inevitably part of the Zionist effort of building the Jewish state. See P. Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley, California, Univ. California Press, 1997). The Israeli Supreme Court (and the U.S. Supreme Court) have a pronounced majority of secular liberals. And all judges, especially judges of Supreme Courts, are well- off and members of the established elites of their societies.