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

Legal Policy and Pandemics: The Journal of the Global Pandemic Network (Forthcoming)

Bar Ilan University Faculty of Law Research Paper No. 21-27

8 Pages Posted: 2 Aug 2021 Last revised: 18 Oct 2021

See all articles by Ittai Bar-Siman-Tov

Ittai Bar-Siman-Tov

Bar-Ilan University Law Faculty

Itay Cohen

Bar-Ilan University, Faculty of Law

Chani Koth

Bar-Ilan University, Faculty of Law

Date Written: July 23, 2021

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

Suggested Citation

Bar-Siman-Tov, Ittai and Cohen, Itay and Koth, Chani, The Changing Role of Judicial Review during Prolonged Emergencies: The Israeli Supreme Court during COVID-19 (July 23, 2021). Legal Policy and Pandemics: The Journal of the Global Pandemic Network (Forthcoming), Bar Ilan University Faculty of Law Research Paper No. 21-27, Available at SSRN: https://ssrn.com/abstract=3892273 or http://dx.doi.org/10.2139/ssrn.3892273

Ittai Bar-Siman-Tov (Contact Author)

Bar-Ilan University Law Faculty ( email )

Faculty of Law
Ramat Gan, 52900
Israel
972-3-7387071 (Phone)
972-3-7384096 (Fax)

HOME PAGE: http://law.biu.ac.il/en/node/1726#tabs-tabset-1

Itay Cohen

Bar-Ilan University, Faculty of Law ( email )

Ramat Gan
Israel

Chani Koth

Bar-Ilan University, Faculty of Law ( email )

Ramat Gan
Israel

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