Politics and the judiciary The Supreme Court and judicial review – The Supreme Court as policy

2013 ◽  
pp. 178-200
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
The Supreme Court

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?

2007 ◽  
Vol 101 (2) ◽  
pp. 321-338 ◽  
Author(s):  
THOMAS M. KECK
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Judicial Behavior ◽  
Policy Conflict ◽  
Insufficient Attention ◽  
Comprehensive Account ◽  
The Supreme Court

This paper explores three competing accounts of judicial review by comparing the enacting and invalidating coalitions for each of the fifty-three federal statutes struck down by the Supreme Court during its 1981 through 2005 terms. When a Republican judicial coalition invalidates a Democratic statute, the Court's decision is consistent with a partisan account, and when a conservative judicial coalition invalidates a liberal statute, the decision is explicable on policy grounds. But when an ideologically mixed coalition invalidates a bipartisan statute, the decision may have reflected an institutional divide between judges and legislators rather than a partisan or policy conflict. Finding more cases consistent with this last explanation than either of the others, I suggest that the existing literature has paid insufficient attention to the possibility of institutionally motivated judicial behavior, and more importantly, that any comprehensive account of the Court's decisions will have to attend to the interaction of multiple competing influences on the justices.

Estoppel

2019 ◽  
Author(s):  
Kenneth Hamer
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
England And Wales ◽  
Res Judicata ◽  
The Supreme Court ◽  
Chartered Accountants ◽  
Court Of Appeal ◽  
Disciplinary Committee

The Supreme Court held that the doctrine of cause of action estoppel applied to successive complaints before a professional disciplinary body, that disciplinary proceedings were civil in nature and that therefore the principles of res judicata applied, and that there was no reason why cause of action estoppel should not apply to successive sets of proceedings before the Disciplinary Committee of the Institute of Chartered Accountants in England and Wales (ICAEW). The Supreme Court so held in allowing an appeal by C-W, a chartered accountant, against the Court of Appeal, which had upheld the dismissal of his application for judicial review of the decision by the Committee to refuse to dismiss a second complaint based on the same facts of a first complaint that had been dismissed on the merits.

Repeat Litigators and Agenda Setting on the Supreme Court of Canada

2002 ◽  
Vol 35 (4) ◽  
pp. 811-833 ◽  
Author(s):  
Roy B. Flemming ◽  
Glen S. Krutz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Statistical Models ◽  
Comparative Research ◽  
The United States ◽  
Supreme Court Of Canada ◽  
High Courts ◽  
The Supreme Court ◽  
Selection Of

The expanding public policy role of high courts heightens concerns over whether societal and political inequalities affect the outcomes of litigation. However, comparative research on this question is limited. This article assesses whether status inequalities between parties and differences in the experience and resources of attorneys influence the selection of cases for judicial review in the Supreme Court of Canada. A series of statistical models reveal that governments are more likely than other parties to influence whether leave is granted but that the experience and resources of lawyers, unlike in the United States, have little impact. The decentralized, low volume and high access features of the Canadian process may explain this finding.

From promise to retrenchment: On the changing landscape of Israeli constitutionalism

2020 ◽  
Author(s):  
Adam Shinar ◽  
Barak Medina ◽  
Gila Stopler
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Israeli Society ◽  
Individual Rights ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Comparative Constitutional Law ◽  
Constitutional Revolution

Abstract Israeli constitutionalism has long interested comparative constitutional law scholars, whether due to its geopolitical status, the Israeli–Palestinian conflict, its internal divisions, or its unique constitutional evolution. Unlike many other countries that have ratified constitutions after the Second World War, Israel was established as a parliamentary democracy, with an explicit intention to ratify a constitution at a later stage. This did not happen. Instead, it underwent a “constitutional revolution” announced by its Supreme Court. Fitting a revolution, much of comparative constitutional law scholarship has focused on this pivotal moment. The articles in this symposium depart from the scholarship focused on that moment. They seek to critically understand what has become of Israeli constitutionalism in the past decade. In this introduction, we highlight several transformations and features which we believe are essential if one is to understand the extant constitutional order in Israel. These should be understood as background conditions against which Israeli constitutionalism is operating. They include the strengthening of judicial review alongside rising political resistance to the Court’s power; populism in political discourse targeting rule of law institutions; the erosion of individual rights alongside the strengthening of nationalist elements; and increasing divisions inside Israeli society. These challenge the idea of a successful constitutional revolution in terms of its inherent promise to better protect individual rights and safeguard the rule of law. In describing these features, we seek to situate the Supreme Court, judicial review, and the legal-constitutional order generally, in the larger sphere of Israeli society and politics.

scholarly journals The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary

1993 ◽  
Vol 7 (1) ◽  
pp. 35-73 ◽  
Author(s):  
Mark A. Graber
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Empirical Work ◽  
Political Elite ◽  
The Political ◽  
Elected Officials ◽  
Social Policies ◽  
The Supreme Court ◽  
National Coalition ◽  
Judicial Policymaking

Theoretical and descriptive studies of the Supreme Court exhibit a curious parallel. Both usually begin from the premise that judicial review is “a deviant institution in a democratic society.” Much normative work claims that independent judicial policymaking is rarely legitimate in a democracy because, with few exceptions, elected officials rather than appointed judges should resolve social controversies. In a frequently cited passage, Alexander Bickel asserts that the Supreme Court is “a counter-majoritarian force” in our system of government. Much empirical work, by comparison, insists that independent judicial policymaking seldom takes place in a democracy because, with few exceptions, judges appointed and confirmed by elected officials sustain whatever social policies are enacted by the dominant national coalition. Robert Dahl observes that it is “unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court justices would long hold to norms of Right or Justice substantially at odds with the rest of the political elite.”

scholarly journals Dunsmuir’s Flaws Exposed: Recent Decisions on Standard of Review

2013 ◽  
Vol 58 (2) ◽  
pp. 483-507
Author(s):  
Paul Daly
Keyword(s):  
Functional Analysis ◽  
New Brunswick ◽  
Supreme Court ◽  
Judicial Review ◽  
External Factors ◽  
Supreme Court Of Canada ◽  
Categorical Approach ◽  
The Supreme Court ◽  
Different Types ◽  
Single Standard

In Dunsmuir v. New Brunswick, the Supreme Court of Canada attempted to clarify and simplify Canadian judicial review doctrine. I argue that the Court got it badly wrong, as evidenced by four of its recent decisions. The cases demonstrate that the new categorical approach is unworkable. A reviewing court cannot apply the categorical approach without reference to something like the much-maligned “pragmatic and functional” analysis factors. The categories regularly come into conflict, in that decisions could perfectly reasonably be assigned to more than one category. When conflict occurs, it must be resolved by reference to some factors external to the categorical approach. The new, single standard of reasonableness is similarly unworkable without reference to external factors. Different types of decision attract different degrees of deference, on the basis of factors that are external to the elegant elucidation of reasonableness offered in Dunsmuir. Clarification and simplicity have thus not been achieved.

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