The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

New in WSJ: On Judicial Supremacy in America and in Israel

"The fundamental question in any system of government is: Who decides?"


The Wall Street Journal published my letter-to-the-editor concerning current debates about the Israeli judiciary. I tried to draw parallels between judicial supremacy in Israel, and in the United States.

Here is the opening (with all due credit to Judge Sutton):

The fundamental question in any system of government is: Who decides? America's founders framed a Constitution that carved out three branches of government that would check and balance each other. By contrast, the founders of Israel didn't frame a constitution at all. Yet somehow, in both countries, judicial supremacy took root ("God Save This Honorable Court, but Not That One" by Ruth Wisse, op-ed, Feb. 17).

The U.S. and Israeli Supreme Courts have both asserted the power to write the final word on any legal question (and, in Israel, nonlegal questions too). In the U.S., perhaps this power can be grounded in Article III of the Constitution. But in Israel any claim to judicial supremacy rests only on a house of cards.

You can read the rest here.