Courts and Constitutions Under Stress

Recent events in Israel, the US, and many other democracies--such as the rise of populism, increases in political divisiveness, growing intolerance, as well as manipulation and distrust of courts and other key political institutions—have posed daunting challenges to the stability and seemingly increasingly  the very  viability of liberal constitutional rule which had become predominant worldwide since the 1990’s. The causes giving rise to these recent challenges as well as the illiberal reactions to the latter that have sprung during the last decade are notoriously varied and complex. On the one hand, liberal constitutional democracies have been accused of favoring elites against the “people”; of preaching pluralism and multiculturalism and global values to the detriment of traditional religious, ethical and cultural mainstays of the polity’s longstanding majority of the citizenry; and of favoring globalization and mass migration in ways that undermine and destabilize the political viability and social cohesion of nation-states. On the other hand, high courts that engage in constitutional adjudication have come under special attack for vastly broadening the “juridification” of the political arena in ways that seemingly benefit elites and special interests while frustrating large segments of the citizenry. In Israel, for example, recent attacks on the Supreme Court have intensified and proposals have been made to deprive the latter of jurisdiction in matters involving constitutional issues. At the same time, in the US, the refusal of the US Senate to act on President Obama’s nomination of Merrick Garland to the Supreme Court in 2016, followed by  the Senate majority’s elimination of the filibuster rule to confirm two Trump Supreme Court nominees considered by many to be too far from the mainstream, has led several Democrats to call for “packing” the Court to swing its direction, thus exacerbating the perception of the Court as a purely political institution.

The purpose of this two-day conference is to examine what accounts for, and what may be done to counter, the current conditions of stress that afflict both constitutions and courts, with primary emphasis on Israel and the US, but also with focus on other constitutional democracies currently experiencing similar kinds of stress. Drawing upon an international  group of leading scholars, the conference will consist of the four following panels: 1) Constitutional Crises in Historical Perspective; 2) Are Courts Necessarily Political?; 3) Threats to Democracy from Within the Democratic Process; and 4) The Virtues and Vices of Activist Courts: The US Warren Court Compared to Israel’s Barak Court.

The event is open to the public, but advance registration is necessary. To register, email iscp@yu.edu.

CONFERENCE SCHEDULE

1:30–45: Welcoming Remarks

1:45–3:45: Panel One

1. Constitutional Crises in Historical Perspective

  There is a widespread perception that we are currently witnessing constitutional crises in a large number of democracies throughout the world. Such crises, however, are by no means a new phenomenon. For example, France has experienced many constitutional crises since its 1789 Revolution; the US has confronted major constitutional upheaval at the time of the Civil War and during the course of the New Deal; Germany, the same, notoriously during the Weimar Republic; and Israel arguably periodically since its independence as it has not yet settled on a full-fledged constitution and as that has caused occasional flare ups into contentious and unsettling impasses. The purpose of this panel is to place current actual or apparent constitutional crises in their proper broader historical context.

Pnina Lahav (Boston University School of Law)
Nomi Stolzenberg (USC Gould School of Law)
Marinos Diamantides (University of London, Birkbeck, School of Law)
Wojciech Sadurski (University of Sydney Law School)
Philip Bobbitt (University of Texas at Austin School of Law and Columbia Law School)

4:00–5:30: Panel Two

2. Are Courts Necessarily Political?

There is a long-standing debate regarding whether courts, and in particular those that engage in constitutional adjudication, can raise above politics or whether they ultimately amount to counter majoritarian political institutions with disproportionate and often highly resented powers. Can cogent distinctions be maintained between judicial politics or judicial philosophy, on the one hand, and ordinary politics, on the other? Can perceptions of political bias by constitutional judges be mitigated by appointment rules, veering toward consensus candidates, or limiting jurisdiction in constitutional cases? Can court “packing” or “unpacking” ever succeed in redressing perceived one sided political bias on a particular court?

William Galston (Brookings Institution)
Amnon Reichman (University of Haifa School of Law)
David Dyzenhaus (University of Toronto Faculty of Law)

9:00–10:30: Panel Three

3. Threats to Democracy from Within the Democratic Process

 “Internal” threats to democracy can come from many sources, including, among others, gerrymandering, voter suppression, proliferation of extremist parties, increased polarization of elected representatives leading to legislative stalemate, constitutional amendments and other measures leading to the weakening or elimination of opposition parties, and abusing or ignoring democracy enhancing constitutional measures such as commitment to “militant democracy”.

Rick Pildes (NYU Law School)
Rivka Weill (IDC Herzliya Harry Radzyner Law School)
Turkuler Isiksel (Columbia University)
Susanna Mancini (University of Bologna School of Law)

10:45–12:15: Panel Four

4. The Virtues and Vices of Activist Courts: The US Warren Court Compared to Israel’s Barak Court

There has been much debate over the virtues and vices of activist courts responsible for important constitutional transformations. Two such courts have been the US Warren Court (1953-1969) and the Israel Supreme Court under the presidency of Aharon Barak (1995-2006). The purpose of this panel is to assess the achievements of these two courts from the standpoint of both supporters and critics of their respective activist approaches.

Yoav Dotan (Hebrew University of Jerusalem Faculty of Law)
Ori Aronson (Bar-Ilan University Faculty of Law)
Michel Rosenfeld (Benjamin N. Cardozo School of Law)
Gabor Halmai (European University Institute Department of Law)