The Changing Role of Judicial Review during Prolonged Emergencies: The Israeli Supreme Court during COVID-19

Abstract

This paper explores the role of the Israeli Supreme Court in exercising judicial review of COVID-19 control measures. It argues that the Court exhibited changes in its review methods and an adaptation of its role (and its demands from the other branches of government) throughout this prolong crisis. At the first stage, the Court focused on protecting institutional democratic safeguards, while exercising judicial restraint and greater deference than usual in its substantive review of the content of COVID-19 measures. The second stage, as time has passed, was characterized by greater judicial intervention, and growing propensity to hold COVID-19 measures unconstitutional, based on a combination of stricter substantive judicial review and an increased demand for an evidentiary and scientific basis to justify infringement of rights. The Israeli case therefore demonstrates the question of the changing role of judicial review in general (and of evidence-based judicial review in particular) during prolonged emergencies.

Keywords: COVID-19; coronavirus; pandemic; crisis; judicial review; evidence-based judicial review; courts; separation-of-powers; Israel