Is There a Countermajoritarian Difficulty in Israel? An Empirical Study

Abstract

The dispute over the authority and the policy of judicial review in Israel has become one of the most controversial issues in Israeli politics. One of the main arguments against judicial review is the countermajoritarian difficulty: the court, which is not elected and does not represent the will of the people, overturns decisions, which have been made by the elected parliament. This Article presents an empirical study—the first of its kind—which examines the public opinion on questions that were subject to constitutional judicial review, in order to find out which branch—the Legislature or the Judiciary—expresses more accurately the public opinion. The study found that in most cases, there was a clear majority among respondents who opposed the statutes that the Israeli Supreme Court invalidated. There was also a clear majority that supported the Supreme Court’s authorization to invalidate statutes. This Article presents the history of constitutional judicial review in Israel and the status of the constitutional Basic Laws, presents the empirical study and its findings, and, lastly, analyzes the findings and discusses their normative implications.

Keywords: judicial review, countermajoritarian, public opinion