Democracy Vs. Rule of Law: Does the Court Really Control the Elected Legislature?

Legal scholars worldwide have been debating whether or not judges and courts in democracies are in the process of seizing excessive authority away from elected legislatures. The debate focuses on which body should have the ultimate authority in deciding what the law should be: majoritarian legislatures or the more independent and less representative courts. The current global trend of creating constitutional catalogues of rights, and the establishment or reinforcement of judicial review of legislation, is increasingly setting boundaries to policymaking authority by the legislature and executives. Recently, Israel became a prime example of this global debate when Robert Bork, one of the most vocal and influential critics of the process, wrote: Pride of place in the international judicial deformation of democratic governments goes not to the United States, nor to Canada, but to the State of Israel. The Israeli Supreme Court is making itself the dominant institution in the nation, an authority no other court in the world has achieved. Indeed, as Professor Bork notes, the Israeli Supreme Court has gained the power to choose its own members . . set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law and has created a body of constitutional law despite the absence of an actual constitution. It is therefore no surprise that scholars and politicians are debating the growing role of the Israeli Supreme Court in general, and specifically, the division of powers between the court and the legislature in Israel. Most of the scholarly work on the general subject debates the desirability of the so-called judicial supremacy. Other works take judicial supremacy as a fact, and examine it from the perspective of the courts, analyzing their role and action. Focus has been put, in this respect on the claim that courts who overturn legislation by elected parliaments act in a counter-majoritarian way. However, the existing literature generally ignores the ability of parliaments to fight back. The main purpose of this paper is to contend that, contrary to popular belief, the legislature ultimately holds more influence than the court. Specifically, I believe that the Israeli legislature (the Knesset) is more powerful than the Israeli Supreme Court. This paper has two main sections. Part A provides a primer on Israeli constitutional law, focusing on judicial review and the relationship between the Israeli judiciary and parliament. Part B analyzes the various powers and tools that parliaments have in confronting courts that the parliaments believe are overstepping their bounds. The paper concludes that legislatures have many ways to participate in the constitutional dialogue with the courts. Some of these methods should be anticipated at the time that constitutions are drafted, or later inserted in the constitution through amendments. Other techniques may be used in response to the legislature's perception that the judiciary has overstepped its boundaries. Not all methods described in this paper are recommended, and not all of them are suitable for all countries at all times. If the relationship between a legislature and the court is built on mutual understanding and balances, there may be no need for a legislature to use any of these powers. In Israel, the Knesset has rarely used any of these measures. But the turbulent political atmosphere of recent years, and the growing gap between the Supreme Courts and certain segments of the public and their representatives in the government, create a real danger that they will be used. Hopefully, the threat that any or all of those measures would be applied will make the judiciary and especially the Supreme Court more cautious in its challenges to the law passed by the legislature. If the Court is more restrained voluntarily, the Knesset will have no need to use the numerous methods described in this paper in order to formally limit its power.

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