Introduction: The Most Endangered Branch

220 years ago, on 24 February 1803 the US Supreme Court handed down its decision ‘Marbury v Madison’.^[1] And while historically (even for the US) this may not be wholly accurate,^[2] this decision in holding that ‘a law repugnant to the constitution [was] void’^[3] is widely (and given its impact: justly) celebrated as the hour of birth to what is commonly referred to as ‘judicial review’.^[4]

As a concept, judicial review has never been above a wide range of (scholarly) criticism: Whereas theorists such as Carl Schmitt argued that rather than successfully adjudicating political conflicts, judicial review would only succeed in politicizing the judiciary,^[5] scholars such as Alexander Bickel famously argued that to make it ‘emphatically the province and duty of the judicial department to say what the law is’,^[6] would cause a ‘counter-majoritarian difficulty’^[7] that, rather than prevent the much-feared ‘tyranny of the majority’,^[8] would render far-reaching policy decisions by unelected judges democratically illegitimate; making the ‘least dangerous’ branch (as Hamilton famously referred to the judiciary)^[9] a powerful political actor to be reckoned with. More recently, Jeremy Waldron has argued ‘against judicial review’, questioning in particular whether rights, indeed, are better protected by the judiciary than by the democratic legislator.^[10] And finally, scholars such as Stephen Gardbaum, Mark Tushnet and Rosalind Dixon argue that ‘strong form of judicial review’ may result in more political pressure and stress on courts, thereby advocating, for this and other reasons, for weaker forms of judicial review.^[11]

Still, if we were to conduct a survey of national constitutions, there would remain little doubt as to the broad acceptance of judicial review: (Not only, but in particular with respect to the protection of rights) Judicial review (either according to the ‘American Model’ with, simply put, the powers of review vested in the judiciary as such and – ultimately – in a general Supreme Court or according to the ‘Austrian Model’ with the review powers monopolized by a Constitutional Court)^[12] has been a (nearly unparalleled) success, an idea that modern day constitutionalism, globally, can no longer do without.^[13]

Or can It?

In recent years, the world is experiencing a crisis of constitutional democracies as populist leaders set out to bring about the erosion of the democratic order. Typically, this doesn’t happen overnight, by way of a constitutional coup de main. It is a piecemeal process; a process of incremental, but ultimately still substantial, decay in the basic grounds of democracy – competitive election, liberal rights to speech and association, and the rule of law. Tom Ginsburg and Aziz Law show in their book How to Save a Constitutional Democracy that a central element in the process of democratic erosion is incrementalism: it is a gradual process that consists of many small steps that rarely constitute a frontal attack on the fundamental principles of the liberal-democratic order. While each of the measures – some of which are even legitimate in themselves to one degree or another – is examined on its own, it is difficult to say that this is the ‘end of democracy’. But when the various means are considered cumulatively, the whole is greater than the sum of its parts.^[14] In its peak, this erosion can bring about an overall change in the governing system, including the introduction of authoritarian and anti-democratic elements, as it happened in Hungary, Poland, Venezuela and Turkey. This strategy is also known as ‘Stealth Authoritarianism’.^[15]

Wojciech Sadorski describes at length in his book Poland’s Constitutional Breakdown how democracy collapsed in Poland. After the rise to power of the populist Law and Justice Party in 2015, the system of checks and balances in the country was dismantled. The legal overhaul was manifested in a variety of legal measures that had a cumulative effect: the weakening of constitutional checks on governmental power, among other things by capturing the judicial system and especially the Constitutional Court, which until then was perceived as a central player in the enforcement of governmental limitations and the protection of the democratic process and human rights; the merger of the Attorney General’s Office with the Minister of Justice; turning public media into an instrument of government propaganda; supervising civil society organizations; delegitimizing political opposition, infringing freedom of expression, and changing electoral laws. Sadorski writes that it is difficult to put one’s finger on a specific event that may be considered the turning point: only in retrospect it was realized that the dividing line between liberal democracy and hollow democracy had been crossed.^[16]

In India, the world’s largest democracy, the government adopted a series of constitutional and legal changes to ‘slip under the radar’ of the Supreme Court and international institutions, while undermining a long-standing commitment to liberal, secular democratic constitutionalism, as described by Tarun Khaitan.^[17] Weakening the opposition, weakening and capturing systems of checks and balances, providing that religion is the basis for the decision regarding Indian citizenship, canceling the constitutional status of Kashmir, and creating a financial system in elections that preserves the anonymity of donors and those who are donated, are only part of a series of gradual and systematic moves that have resulted in severe damage to Indian democracy, causing its ‘death by a thousand cuts’.^[18]

In Hungary, the overwhelming victory in the elections in 2010, which in light of the complex electoral system, guaranteed the Fidesz party more than two-thirds of the seats in the parliament, allowed the Prime Minister, Viktor Orbán, to reshape Hungary through hundreds of laws, amendments to the constitution and even a new constitution that was introduced effective in 2012, and was constituted only by the ruling party and with the strong objection of the opposition. These changes turned Hungary into an illiberal country.^[19]

Apart from incrementalism, an important element of democratic erosion is the use of constitutional and legal means in order to erode the constitutional order. This has been described as ‘abusive constitutionalism’ or ‘autocratic legalism’ – using (or abusing) constitutional and legal means in order to undermine democratic values and institutions.^[20] So, democracy nowadays dies not ‘in darkness’, but by incremental, subtle and legal means.^[21]

Among the constitutional and legal changes in which democratic erosion is used, the changes that harm the authority and independence of courts are particularly dangerous.^[22] Comparative experience shows that weakening the ability of courts to supervise the government and review its actions is a central pillar of democratic erosion, as it removes a crucial obstacle for a government seeking to consolidate its power, and makes it easier for it to make further changes later. In other words, because the judiciary is the last line of defense of democracy, in order to capture and undermine democratic institutions the first thing that governments do, once in power, is to threaten, limit and if possible, to capture and court. Once the court is weakened or captured, it then becomes easier to weaken or capture other democratic institutions.^[23]

Thus, for example, constitutional amendments in Turkey allowed the ruling party to increase the number of Supreme Court and Constitutional Court judges and take control of them. In Hungary, the most severe governmental attack on the system of checks and balances was on the judicial system. Constitutional changes weakened the judicial review authority of the court and allowed the government to control the process of appointing judges and subsequently the court. Furthermore, constitutional review was limited so that the court could not review budgetary and fiscal matters, the broad right of public ‘standing’ before the constitutional court was reduced, interpretation of laws was restricted to be based on solely on the explanatory notes of bills, and judicial review of constitutional amendments was limited only to procedural and not substantive review.^[24] And in Poland, capturing the court and limiting the authority of constitutional review were important milestones in the erosion of democracy in the country. This was done, for example, by narrowing judicial discretion so that except for exceptional cases, the Constitutional Court will hear petitions according to the order of submission, by allowing political intervention in judicial procedures, by providing that the Constitutional Court can review the constitutionality of laws only in a composition of 11 (out of 15) and that a legal invalidation of laws will only be done by a two-thirds majority (this provision was subsequently removed following international criticism).^[25]

In both Poland and Hungary, limiting judicial review was a significant step in weakening the systems of balancing, controlling and checking governmental power. At the same time, and especially after capturing the judicial system, the governments in Poland and Hungary weakened the media, civil society organizations and academia, and electoral laws. Comparative experience therefore shows that once the court is neutralized, it is difficult to stop the damage to democracy, individual rights, rule of law and open elections.

Populist governments consider institutional limitations on majority power as an illegitimate usurpation of power by elites. They reject constraints such as constitutional safeguards, gatekeepers, and other checks on their authority; oftentimes based on or by perverting some of the arguments developed against judicial review presented above: Courts as independent institutions that may block governmental power, are attacked as ‘unelected’, anti-democratic and elitist institutions, and attempts are made to weaken or capture them.^[26] Indeed, it seems, that the least ‘dangerous branch’ (irrespective of how dangerous it might be and for whom) is at risk to become the most endangered branch.

A notable example for such an attitude towards the judiciary is Israel.

The Israeli Supreme Court was considered, in the last three decades, to be one of the most powerful courts worldwide.^[27] The Court’s extensive powers derive from the broad standing before it, narrow restrictions on justiciability, a broad doctrine of reasonableness in administrative review, authority to apply strong judicial review of legislation, and even the power to review basic laws themselves (a matter that is still contentious).^[28] The authority of judicial review was derived by the court implicitly from Israel’s basic laws, without explicit authorization, in a Marbury v Madison style of judicial decision – the United Mizrahi Bank Case of 1995,^[29] which exacerbated the debated of the legitimacy of strong judicial review in Israel.

It is often explained, that in Israel a powerful court is necessary against the backdrop of Israel’s weak system of checks and balances: a single chamber in parliament, a president without veto powers, it is not a federal system which would allow for a vertical separation of powers, there is no regional element in the elections (‘constituencies’), and the country is not subordinated to any supra-national regional or international institution or a human rights court, such as the European Court of Human Rights or the EU, and the relatively strong executive which controls the legislature.^[30]

In the last decade, Israel has been going through an intentional legislative and political process which aimed to weaken and circumvent democratic checks and balances and liberal-democratic principles. These include attempts to limit the authority of independent institutions, such as the Supreme Court, legal advisors and the ombudsman, executive aggrandizement and weakening of the opposition, attempts to silence criticism, control the media and delegitimize human rights organizations, and exclusion of the Arab minority.^[31]

In the last year, however, that process reached a peak when the new government, inaugurated on 29 December 2022, initiated a package of far-reaching ‘reforms’ in the judicial system, which could have a dramatic effect on the very democratic system of government.^[32]

The package was composed of a set of four proposals:

First, limiting constitutional review. This proposal was composed of three elements: first, to limit the Supreme Court’s authority of judicial review, from a decentralized model to a centralized one, in which only the Supreme Court will be authorized to declare unconstitutionality and only with a super-majority of 12 out of the entire 15 judges of the court sitting. Second, to enact a Canadian style ‘override clause’ that would allow the Knesset to reenact every statute invalidated by the court through a majority vote of its members (61 out of 120). Third, to remove the court’s authority to review basic laws which is extremely problematic in the Israeli case, because basic laws can be enacted through ordinary legislative procedures.

Second, to change the composition of Israel’s judicial selection committee. Currently, the committee consists of nine members: two ministers, two Knesset Members; three Supreme Court judges, and two representatives of the Israeli Bar Association. For selecting a judge to the Supreme Court, a super majority of seven out of nine is required. The government wanted to change the composition so that the coalition would control the appointment of all judges, both to the lower courts and to the Supreme Court.

Third, to transform the role and status of legal advisors of ministers from independent gatekeepers, appointed by independent committees, whose legal advice is binding upon the government, to a ‘trust appointment’ or, in other words, to a political appointment, whose legal advice is solely recommendation.

Fourth, and the only reform to be enacted thus far, was a constitutional amendment removing the court’s authority to conduct reasonableness review of Cabinet and individual ministers’ decisions.^[33]

While some of the government’s proposals may appear reasonable when considered individually, or in comparison to some other countries, their application in Israel out of the local context and structure may be regarded as ‘abusive borrowing’,^[34] which may lead to a ‘frankenstate’.^[35]

If these reforms were enacted, the government, that effectively controls the Knesset, would have absolute powers to enact any law – regardless of how violative it is – without any meaningful limitations. This would have created an unlimited government, putting the rule of law, separation of powers and human rights at great risk.

The proposed legal reform has garnered significant objection, within the legal profession and the political opposition, but more broadly within large segments of the society, and has become the focal point of an unprecedented protest movement, with hundreds of thousands of demonstrators participating in mass rallies across the country.^[36]

The judicial overhaul in Israel began in what was called ‘Hungarian Blitz’, based on the rapid move of constitutional takeover carried out by the Fidesz party immediately after its rise to power in Hungary. The Israeli government also wanted everything and quickly, but encountered public and civilian resistance like never seen before. This civil opposition led to the suspension of the legislative process of the radical reform set. The Hungarian blitz was stopped. The government decided to continue the revolutionary change, but had learned its lessons: instead of one inclusive, comprehensive and fast move, it opted for a set of several smaller moves: from the Hungarian blitz to the ‘Polish salami’, a term based on the experience of the withdrawal of democracy in Poland, with the first slice already cut by enacting the fourth part of the package.

For now, the Gaza War as a consequence of the devastating attack on Israel by Hamas prevents the Israeli government to proceed as planned. This does not mean (nor has it been alleged) that these plans have been discarded. And, thus, it is by no means to be taken as a given that the threat of democratic erosion faced by Israel might yet be averted. Time will tell. Until it does, Israel is yet another example of a democracy hanging in the balance because of the incremental attack on its institutions (first and foremost its courts) by populist actors.

Given this background, the 220^th anniversary of Marbury v Madison is more than a mere pretext for publishing two special issues of a journal dedicated to international constitutional law on courts and judicial review. It is a reminder that democracy and the rule of law as interdependent phenomena are never to be taken for granted: to establish their interdependence has been nothing short of a great historical achievement; with it being perceived as a matter of course in large parts of the world in the 21^st century as an achievement in its own right. And yet: just as this interdependence (and its air of self-evidence) has been won over time, it is at risk of being lost over time if we do not defend it.

It is our belief that in this contest, scholars should not stand idly by, but should voice their concerns and make their voices heard.^[37] In dedicating two special issues to ‘the most endangered branch’ and in focusing on theoretical problems and jurisdictions that may not be in the limelight of international discourse as often as others, the ICL Journal intends to do its part in making that possible.