How Much Power Should the Courts Have?

Many of the new constitutions gave the high courts clear authority to safeguard the rights of minorities and the democratic system. Some of the courts vigorously wielded this power to set aside majoritarian decisions that appeared to undermine democracy over the longer run. In 1998, after a referendum for secession nearly passed in Quebec, the Canadian Supreme Court ruled that such a vote would not be constitutionally sufficient because it violated the principles of federalism and the protection of minorities. When lawmakers in Colombia proposed a referendum in 2010 allowing President Álvaro Uribe to run for a third term, the Constitutional Court ruled that a president who served for 12 years would amass too much power, through appointments, over the institutions charged with checking him. The South African Constitutional Court asserted its independence from the ruling African National Congress party at several critical junctures, allowing corruption charges to proceed against a former president.

These courts appeared to pick their battles carefully. “If courts abdicate their responsibility to protect democracy, they’re not doing their job,” says Dixon, a law professor at the University of South Wales in Australia. “But if they are too robust about confronting the political branches, they’re almost certain to be subject to attack and derailment in the long run. They have to allow society to recalibrate so that people don’t see the court as a massively political institution.”

The Israeli Supreme Court became vulnerable to attack in part because the country does not have a constitution granting the court the power to interpret it. When Israel was founded in 1948, efforts to draft a constitution broke down. Leaders of the dominant and secular Labor Party saw little reason to limit their own power and didn’t want to jeopardize their shaky accord with the ultra-Orthodox parties, which wanted religious law to be sovereign. In the 1980s, as Israel’s Jewish population became more religious and traditional, secular Israeli law professors drafted provisions for a constitution, consulting with their American peers and Aharon Barak, an Israeli Supreme Court justice. In 1992, the Knesset passed a Basic Law (a statute setting a national standard) that guaranteed dignity and liberty. Barak proclaimed a “constitutional revolution” with new sway for the judiciary. “Nothing falls beyond the purview of judicial review,” he wrote.

The Israeli Supreme Court has tried over the years in various ways to mediate the tension between the country’s twin commitments to being both a Jewish and a democratic state. It ruled in favor of gender and sexual equality and the status of Conservative and Reform Jews, rejecting ultra-Orthodox positions. But it has backed away from the role of protecting Palestinians in Israel, who lack equal rights, and Palestinians in the West Bank, who have no vote in Israeli elections.“The court has not said, ‘Our role is to ensure the rights of those who are least able to protect themselves through the democratic process,’” says Omar Dajani, a law professor at the University of the Pacific. “Instead, the court says again and again: ‘The state is in a fragile situation. We are deeply mindful of the security concerns it faces. We’re going to create a framework for balancing interests.’ And then the balancing almost inevitably leads to privileging state interests over Palestinian interests.”

The court seems to be taking into account right-wing frustration in other ways. “Over the last 20 years, the Israeli Supreme Court, while issuing valuable rulings on the rights of women, L.G.B.T.Q. people, refugees and asylum seekers, has actually been in gradual retreat from the Barak revolution and the all-out progressive line,” says Ran Hirschl, a professor of political science and law at the University of Texas, Austin, and author of the 2004 book “Towards Juristocracy.” Yet the court’s image as secular and elite remained a potent political tool for the right.