"The Role of the Judiciary in Comparative Perspective"-- a synopsis of presentations from panel two of the ISCP's inaugural conference

The Role of the Judiciary in Comparative Perspective: A Synopsis of Presentations from Panel Two of the ISCP's inaugural conference, Constitutional Conflicts and the Judicial Role in Comparative Perspective 

*Prepared by Orly Rachmilovitz

Moderator Julie Suk (Cardozo School of Law) introduces the topic of the talk as addressing the differences between the Israeli and United States Supreme Courts, specifically in that the Israeli Court handles a large mandatory docket with an extreme volume of cases. How does this structural difference influence decisions substantively? How does it influence approaches to the Court’s role in leading or following society? What is the impact on the Court’s legitimacy?

Justice Daphne Barak-Erez (Israeli Supreme Court):

Sometimes comparativists tend to focus on doctrine, the substantive law questions on how different jurisdictions deal with different questions. But of no less importance is how to deal with differences in institutional design and their effects.

The Israeli Supreme Court hears thousands of cases a year, but it usually hears these cases without discretion to decide whether to hear the case or not. In the US the situation is different. The United States Supreme Court has wide discretion on taking cases. It is important to remember that the Israeli Supreme Court fulfills two capacities that in the United States are divided between two systems. The Israeli Supreme Court is equivalent to the United States Supreme Court, but there are also 51 other supreme courts in the United States, while the Israeli Supreme Court is the main appellate court in the country.

The question is which is better, essentially, but we cannot deal with this question in the abstract, because we can think of relevant advantages and disadvantages in each system. A court that can be selective can dig deeper into the cases it takes. On the other hand, the Israeli Supreme Court maintains close attachment to everyday cases heard in lower cases.

So which is better? This question must be evaluated in context. Even if Israel wanted to change or its Supreme Court concentrate on a select number of cases, it is important to remember that this is not for the Court to decide, it would necessitate an amendment and evaluation vis-à-vis the Israeli constitutional project. Second, it would necessitate much broader reform in our system so that the Israeli Supreme Court would no longer be a court of appeals. We cannot separate the question of the Court’s function from the larger issues of the work done by other courts in Israel. Even if there is broad consensus for change, there are different views regarding the reforms that should be introduced.

As for some implications of all this on judicial legitimacy, the positive side of the current Israeli system is that the Israeli Supreme Court is perceived as an accessible court, to the people, to attorneys. But there is also a downside. Since the Court does not control its docket, it must hear cases even when they are problematic in terms of their political context and timing. Though the court has some discretion (under rules of standing and theories of justiciability), when the court uses these doctrines, it has to give reasons. The United States Supreme Court does not have to give reasons for denying cert. The duty to give reasons puts the Israeli Supreme Court in a more complicated position. Additionally, when the United States Supreme Court does not grant cert, it is assumed that another court has decided the issue. But when the Israeli Supreme Court decides not to hear a case, this means that other courts will not hear the case, and the implications for the issue are more severe.

The United States Supreme Court is relatively protected from political retaliation, because it has a full protective constitution. The Israeli Supreme Court functions within the Basic Laws, and the political system can still change balances in powers. As a result we cannot really compare the Israeli Supreme Court to other supreme courts until the Israeli constitutional project is complete. The most important thing for the Court is completing the constitutional project in Israel in a way that will also secure the status of the Court and its mission.

Yoav Dotan (Hebrew University Law Faculty):

I will discuss the Israeli Supreme Court in the context of its role as a High Court of Justice. It serves as a court of first and last instance on the most important cases, and hears about 1000 other cases every year. I would like to shed light on the relationship between the procedure and the political and historical implications on the development of judicial review. This structure brings about an unusual caseload. How do you screen more important cases? Also, judicial review is done in the Israeli Supreme Court in real time. In contrast, consider post 9/11 Guantanamo cases in the United States. The first case took 2-3 years to make its way up to the United States Supreme Court. In Israel it would have made it to the Israeli Supreme Court within 24 hours.

What is the relationship between the Court and ancillary institutions, on the development of judicial review and judicial activism? The key era to look at is the 80s, when the most significant reforms took place. The Israeli Supreme Court scrapped almost all standing and justiciabilty theories. In principle everything became justiciable and access was expanded, including by reducing costs, fees, or the need for lawyers. The Court started reviewing military action – even ongoing actions, the Knesset’s internal procedures, and senior appointments of government officials. It is the only court that virtually dismisses ministers and other officials. It does so through a robust doctrine of reasonability. Additionally, between the 70s and 2010, without adjustment to the population, the number of cases in the Court more than tripled. Costs to disadvantaged groups, compared to corporations, became very low. The risk of incurring costs if you’re a member of a disadvantaged group is very limited. All this facilitates access to the court.

Comparing the 70s to the 90s, before and after the reform, we find that success rates are significantly higher in the 90s. But most of the Court’s work is done through reaching settlements, not through handing down decisions. The true change in success rate should be linked to the rate of successful settlements by petitioners. The relative number of petitions that succeed through final decisions handed down by the Court is almost the same, maybe slightly lower. Most of the Court’s work, its intervention into Israeli governance, is done through pushing the government to settle.

Another way to look at how the Court is doing is to look at the conditional order – the preliminary, concise hearing phase where the petitioner presents the core of the claim, the government responds, and the Court decides whether to go deeper or to dismiss entirely. During the 90s the relative number of conditional orders drops, which means there are fewer cases where the court goes into a full procedure. This is particularly for cases handled by the attorney general, than for local government.

Barak Medina (Hebrew University Law Faculty):

My talk is more on the substance than the structure, and I would like to explore the Israeli Supreme Court’s role in regulating politics, and what can be seen as a recent shift in the jurisprudence regarding equality. In the last 3-4 years, the Israeli Supreme Court developed a new doctrine of equality that is used not only to protect minority groups from prejudice or harm but also enforce some sort of republicanism rather than pluralism. I will present the shift, then show aspects of the doctrine, evaluate it from a political perspective, and offer some critiques. I will try to support this shift, though I suggest the Court may need to distinguish explicitly between the doctrine applied to the government and a separate one that is used to curtail interest group politics.

The Nasser case from 2012 (HCJ 8300/02) considered a provision by the Knesset that taxpayers from particular municipalities would pay a lower income tax. There was no understandable rationale, it seemed the provision was motivated by group politics rather than a broad public interest. On the one hand it is disturbing that the Knesset does this without justification, but on the other hand it is hard to evaluate the discrimination because it was such a small group that was not part of a privileged group. The Israeli Supreme Court decided that this was an infringement of the right to equality and therefore is subject to judicial review and rationality. Absent a rational basis the legislation was struck down. The important aspect of the decision is Justice Beinisch’s finding that ignoring other similarly situated communities and denying them the same benefits infringes upon their rights, which reflects a harsh disrespect for their dignity and equality by the government. The Court used the same argument that we are used to seeing when there is classic discrimination of treating people from disadvantaged groups differently than those from privileged ones. It’s the same narrative, but there is still no consensus about this. President Grunis insisted that the right to equality should be restricted to the classical, narrower sense of equality.

Some aspects of the doctrine mean that expanding equality is the first stage of the analysis – was a right infringed – becomes technical. In any case the government employs different measures, and when the test turns on whether the group is privileged or not the answer is that there will be an infringement.

The debate within the Court is in fact about politics, and the political ideals that guide us – pluralism, bargaining between interests that would achieve the public interest. So we should encourage a market-like process. The result is the position that the Court would only limitedly intervene where there is a chronic failure. On the other hand, the court is concerned by popular discontent with the political process, that Knesset members represent interest groups, and the Court should be curing these flaws of sector-motivated politics. So the debate is in fact on two levels: first, what is the proper political ideal, or should we follow republicanism and impose impartiality on the Knesset, and second – what is the role of the Court in enforcing these theories. In my view, it is justified to regulate politics. There is a role for a court and constitution to regulate politics. The idea that pluralism should prevail is wrong in the context of Israeli society. At the same time I don’t think the Court should exploit the right to equality but should develop an independent doctrine.

To conclude, this aspect of interpretation of scope of equality demonstrates a broader trend, where the Court plays a much greater role of protecting the majority, rather than protecting the interest of minorities. I don’t think there is necessarily a trade-off, but I do think it’s important to distinguish the doctrine and base it on other grounds other than human rights law.

Mark Tushnet (Harvard Law School):

Examines the overall legitimacy of a system, but also within the system, through the lens of the South African experience, before and after 1994. Constitutional courts are constrained to some degree by the overall political issues. Constitutional courts may find themselves looking into cases in political theory. This is an exercise at the intersection of political science and constitutional law.

Examining performance of lawmakers, and specifically judges, throughout apartheid – an extreme case of something that may actually be universal: wicked systems. Laws consolidated racial apartheid, and judicial positivism entrenched them. Positivists could act within a minimal rule of law system. They were in a position of limited discretion and rule of law. The problem was that a different apartheid government could have done away with the rule of law, but that would have made it clear to other countries, and to the people of South Africa, what apartheid really was about – denying democracy. South African judges could and sometimes did maintain discretion, including on such matters as detention and military justice. But this discretion was minimally understood, thus apartheid South Africa embodied the idea of the dual state where the rule of law prevails in one segment, while arbitrariness prevails in another.

During the first decade of the Constitutional Court of the democratic South Africa, there was a relatively thick idea of constitutionalism. South Africa is dominated by a single party, and the Constitutional Court adopted a strategic position to the African National Congress (ANC) and authorized actions of the ANC, lest its wings be clipped. So there were pockets where it could not advance constitutionalism. This meant the Court left some areas unexamined or that it explored rule of law as limitedly understood. The regime complied with thick constitutional law within the context of the tension with the ANC.

Circling back to the idea of the dual state – judges could fight back for constitutionalism, but had to do so within constraints. South African judges were constrained by South Africa’s apartheid; acting within it, their actions were not immoral, but in a broader context they achieved a morally wrong, illegitimate rule of law. So there was a “dirty hands” problem, or a rotten compromise. The question is whether the judge can do things qua judge that would make the system less wicked, but still cooperate with the regime, its legitimacy and whether it will last. Perhaps judges in these wicked systems should consider resigning if achieving a true rule of law, or less wicked system, is not an option.