Going Toe to Toe: President Barak's and Chief Justice Rehnquist's Theories of Judicial Activism

Abstract

A critical component of counterterrorism is the role of a nation's judiciary. The concept of an unfettered executive, unrestrained by courts and legislatures alike is detrimental to liberal democracies attempting to balance national security and individual rights. In examining the role of the judiciary in the U.S. and Israel, it is incumbent to understand that different political regimes have differing systems. Nevertheless, there is a common thread to this article: an examination of the willingness of a judiciary to actively review and, if need be, criticize and intervene in the decisions and actions of the executive during armed conflict. The article analyzes decisions of the two Supreme Courts and writings both of the Chief Justice of the U.S. Supreme Court, the late Chief Justice William Rehnquist, and the President of the Supreme Court of Israel, President Aharon Barak. It is suggested, as a point of reference, that the judicial activism advocated both intellectually and in practice by President Barak represents one end of the judicial review scale and that the position suggested by the late Chief Justice Rehnquist represents if not the extreme other end, then at least an opposite.

Keywords: Counterterrorism, Judiciary, National Security, Individual Rights, Civil Liberties, Executive Power, Executive Action, Judicial Review, Judicial Activism, Comparative Law, Rule of Law, Constitutional Law, International Law, President Barak, Chief Justice Rehnquist

JEL Classification: K14, K39, K49