Writing in the Boston Review, Professor Jonathan S. Gould and co-author Jacob S. Abolafia compare the discourse about judicial review in the United States and Israel, particularly how the political left in each country has diverged. In the U.S., the left is turning against judicial review as the judiciary — particularly the U.S. Supreme Court — has moved to the right. In Israel, left-leaning protesters have filled the streets to support judicial review as key to preserving the country’s democracy.
The contrast raises more fundamental questions about the relationship between democracy and judicial review, they write.
“Judicial review will sometimes be a critical check on rash government action and safeguard of the interests of marginalized demographic minorities. But it will sometimes prevent legislation that would advance the public interest and set back efforts of the elected branches to protect minorities that have successfully gained a measure of political power,” they write. “The difference will turn on government structures, social context, and political culture.”
Gould and Abolafia argue that at the moment, those features mean judicial review plays a larger and more important role in Israel than at home, but the current status isn’t static.
“In evaluating the importance of judicial review in any country, we shouldn’t succumb to sloganeering about the goodness or badness of courts as a general matter,” they write. “Rather, we need to look carefully to what role courts play in a particular context, recognizing that judicial review is more important in some polities than in others.”