Inventing Judicial Review: Israel and America

INAUGUARL URI AND CAROLINE BAUER MEMORIAL LECTURE INVENTING JUDICIAL REVIEW: ISRAEL AND AMERICA Robert A. Burt* TABLE OF CONTENTS I. THE FIRST GENERATION: TOWARD AN INDEPENDENT JUDICIARY .............................................. 2017 A. The Impact of the 1967 War on Israeli Jurisprudence .................................................... 2027 1. Jurisdiction over the Occupied Territories ....... 2029 2. The Knesset Acts ............................... 2034 B. The Court's Initial Response ......................... 2036 1. Shalit v. Minister of the Interior ................. 2036 2. Bergman v. Minister of Finance .................. 2043 3. Bergman and Marbury .......................... 2047 4. Jurisdiction over the Territories and Marbury .... 2049 II. THE SECOND GENERATION: THE AMERICAN WAY ...... 2051 A. The Definitive Emergence of Judicial Review in A m erica ............................................ 2051 B. The Israeli Supreme Court Charts Its Path ........... 2066 1. Israel's Dred Scott ............................... 2067 2. Judicial Injunctions to Tolerate the Intolerant ... 2077 3. The Promise and Problems of Judicial Independence ................................... 2084 C. The Convergence of Israeli and American Doctrine ... 2091 * Southmayd Professor of Law, Yale University. This Article is an expanded version of the Inaugural Uri and Caroline Bauer Memorial Lecture delivered at the Benjamin N. Car- dozo School of Law of Yeshiva University on October 11, 1988. I am especially indebted to Justice Aharon Barak, Professor Kenneth Mann of the Tel Aviv University Faculty of Law, and Dean Stephen Goldstein of the Hebrew University of Jerusalem Faculty of Law. Although none of them is responsible for the substance of this Article, without their generous assistance it would not have been written. I am also particularly grateful to two Yale Law School students, Stephen Sowle who helped me with the American historical sources and Joel Prager who gave me access to material only available in Hebrew. 2013 HeinOnline -- 10 Cardozo L. Rev. 2013 1988-1989 2014 CARDOZO LAW REVIEW [Vol. 10:2013 In American constitutional law, the existence of a constitutional text appears essential for the derivation of judicial review. This textual derivation is considered either direct because the founders' expec- tation of judicial review is explicitly inscribed in the Constitution, or indirect because the written character of the document itself implicitly establishes the text as a "law" that judges are both qualified and obliged to enforce against the other branches of government.' In either case, the textuality of the Constitution is the key for the con- ventional justifications of American judicial review. Israel, by contrast, has no written constitution. Israeli judges and legal scholars deduced from this fact that legislative supremacy was the operative constitutional rule and that courts could not justifi- ably invalidate legislative acts. During the past two decades, however, a series of Israeli Supreme Court decisions have raised increasingly extensive doubts about this deduction. Legislative supremacy is still the hornbook rule in Israeli constitutional jurisprudence; but this rule now appears more grudgingly than complacently applied. Following Thomas Jefferson's dictum that each generation should compose its own constitutional regime-and his calculation that for this purpose a generation was thirty-four years2-we might say that the second generation of Israeli judges has cautiously moved toward inventing a practice of judicial review. The contemporary Jus- tices of the Israeli Supreme Court have not openly announced a new rule justifying judicial review; but, in the time-honored fashion of common law judges, their practices are increasingly in tension with the old rule. A new rule for judicial review might therefore emerge from these practices. The story of this gradual process in Israeli jurisprudence is worth telling for its intrinsic interest. For an American audience, and for an American constitutional lawyer, this story is also-and perhaps even primarily-worthwhile for the light that the Israeli developments cast on American constitutional history. The central comparative historical lesson that emerges from the Israeli experience is the influence of I John Marshall's argument for judicial review in Marbury v. Madison, 5 U.S. (I Cranch) 137 (1803), was pointedly indirect, though this may more reflect his limited view of the role of authorial intent in construing the Constitution than his belief that the founders did not themselves anticipate judicial review. See Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985). For the view that the founders did directly intend judicial review, see, e.g., Black, An Astonishing Political Innovation: The Origins of Judicial Review, 49 U. Pitt. L. Rev. 691, 696 (1988) ("John Marshall was assuredly right to see this as a question of no great difficulty .... Indeed, the Framers manifestly thought it, as do I, obvious enough to go without saying."). 2 Letter to James Madison (Sept. 6, 1789), in 15 Papers of Thomas Jefferson 393 (J. Boyd ed. 1950). HeinOnline -- 10 Cardozo L. Rev. 2014 1988-1989 19891 IN VENTING JUDICIAL REVIEW 2015 social and political conflict in pressing judges toward the practice of judicial review. The Israeli experience cannot, of course, show that the American institution of judicial review would have arisen without our constitutional text. The Israeli experience cannot show that the Israeli practice itself would have arisen without the American constitutional text, since the prior existence of the American model of judicial review clearly has influenced the Israeli judges. Nonetheless, there are two reasons why the Israeli and American experiences can be read at least to suggest a common historical basis for the development of judicial review without regard to textual constitutional com- mand, and why the Israeli experience helps to explain the prior American development of judicial review. First, Israeli jurisprudence had an alternative to the American model for judicial conduct-the British example of judicial deference to legislative supremacy. At the outset, Israeli judges explicitly relied on this model to explain their subordinate relation to the Knesset, the Israeli Parliament.3 Large portions of Israeli law had been directly carried over from the British Mandatory Authority in Palestine. Moreover, under the Mandatory regime, English law was relied on to fill "gaps in the local law" and Israeli lawyers were "familiarized and impressed ... with the ways of English law and judicial administra- tion." 4 The British experience was thus readily available to teach Is- raeli judges that a democratic legal system could exist without judicial review. Nonetheless, in small and then in larger ways during the second generation, Israeli judges drew themselves away from this British lesson and toward the American example. This was evident in the in- creased explicit citation of American constitutional law cases by the Israeli Court;5 and less obviously but more fundamentally present in the Israeli cases' implicit tracing of the American institutional rela- tions between court and legislature. Notwithstanding the direct parallels between Britain and Israel-both democracies without written constitutions-some deeper aspect of the American model pulled the Israeli judges toward its orbit. The second basis for finding parallels in the Israeli and American 3 See, e.g., Attorney General v. Matana, 16 Piskei Din (P.D.] 430, 467 (1962) (Berinson, J.) ("England is from a conceptual point of view the closest [comparison] to Israel ... for in both countries there is no formal Constitution"); Likhovski, The Courts and the Legislative Supremacy of the Knesset, 3 Isr. L. Rev. 345, 363-64 (1968) ("Israel like Britain has no written constitution."). 4 Laufer, Israel's Supreme Court: The First Decade, 17 J. Legal Educ. 43, 44-45 (1964). 5 See Lahav, American Influence on Israel's Jurisprudence of Free Speech, 9 Hastings Const. L.Q. 23 (1981). HeinOnline -- 10 Cardozo L. Rev. 2015 1988-1989 2016 CARDOZO LAW REVIEW [Vol. 10:2013 judicial development is their shared gradualism in the evolution of judicial review. American observers looking to Marbury v. Madison can easily miss the caution and even ambiguity of that supposed great fount of judicial review. Many current observers readily disregard the significance of the absence of any direct endorsement of judicial review in the text of the Constitution; they fill the gap with Hamilton's FederalistNumber 78 or excerpts from Madison's Notes on the Fed- eral Constitution,6 without reflecting on the fact that the founders were capable of textually inscribing judicial review authority with words of greater specificity than they actually chose.' This puzzle does not demonstrate that the founders did not intend judicial review; it does suggest, however, that they were cautious, perhaps uncertain or uneasy, about its justification and implications-a caution echoed between the lines of Marshall's text in Marbury. From this gradualist perspective, it is not surprising that the power to invalidate congres- sional acts claimed in Marbury was not exercised a second time by the Court until fifty-four years later.' Like the Israeli experience, the American institution of judicial review did not spring full-blown from the founding document but only gradually came into focus (or, one might say, into being).

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