Showing posts with label Dwight Duncan. Show all posts
Showing posts with label Dwight Duncan. Show all posts

Sunday, January 29, 2023

Israeli law profs raise alarm over judicial reforms

Proposed judicial reforms in Israel have set off a firestorm with critical characterizations comparing Prime Minister Benjamin Netanyahu with the likes of Jair Bolsonaro and Viktor Orbán.

Israel has seen a possible division—now familiar to the United States, cf., most recently, the House Speaker election (NPR)—between a traditionally conservative right and a more extreme right since Netanyahu retained office by allying with parties NPR characterized as "ultra-Orthodox religious" and "ultra-nationalist."

The reforms, which are not yet law, comprise two plans The New York Times described:

Under the first plan, a simple majority of lawmakers could override almost any revocation of parliamentary legislation by the Supreme Court, which can currently block laws on constitutional grounds. The court would only be able to prevent itself from being overruled by Parliament if all of its 15 judges unanimously agreed about the need to block a law.

Under the second plan, the government would be able to appoint a majority of the members of the panel that selects new judges, upending the current system in which government appointees form only a minority of panel members.

Israeli Supreme Court with Knesset behind.
Israeltourism via Wikimedia Commons CC BY 2.0
On the one hand, the proposals would weaken the Israeli judiciary. But some commenters, such as American conservative Josh Hammer, have observed that the proposals are not radical. My colleague Professor Dwight Duncan has argued that a U.S. Supreme Court majority, or at least super-majority, should be required to strike down legislation as unconstitutional. Arguably, the approach better balances the legislative and judicial branches than does extra-textual judicial supremacy. The second proposal would effect a selection process hardly more partisan than federal judicial appointments in the United States.

On the other hand, Israel is not America, and it might be a more urgently pluralist democratic experiment. As well, the ways of our dated Constitution are hardly exclusive pronouncements of best practices. In the context of populist executive aggrandizement in places such as Brazil and Hungary, and subordination of judicial power, as in Poland, the Israeli reform proposals are at least cause for concern.

Objections have come not only from Israeli liberals, but also from economic conservatives, who don't want the economic apple cart upset. The Jewish Telegraph Agency explained, "Foreign investors and international credit agencies have both signaled that if the reforms go through, they will downgrade their estimation of the country," disrupting perception of Israel as "a democratic oasis in the Middle East" possessed of "business savvy."

For the reform side, a proponent think tank posted a perhaps-too-playful, Schoolhouse Rock-style video on Twitter. For opponents, I received Friday from my friend and colleague Professor Roy Peled a statement signed by 198 Israeli professors, including, Professor Peled wrote, the majority of faculty from 13 law schools in Israel. The brief statement reads:

We, senior academic members of staff at law faculties in Israel, strongly oppose the regime change that the Israeli government is promoting under the guise of “legal reforms”. These far-reaching constitutional changes include providing the government with absolute control over the appointment of the judiciary; near complete elimination of judicial review; dissolution of civil-servant ministerial legal counsels as gatekeepers; and undermining the freedom of the press. In aggregation, these proposals suffocate the independence of the judiciary, dissolve the separation of powers between the branches of governments, and eliminate the rule of law. No recognized democratic country in the world operates under such conditions. The combination of the proposed changes is alarming and dangerous. It will bring far-reaching infringements of human rights, and strip Israel’s system of government of fundamental features of its structure as a democracy.

We call on those involved in the legislative process to avoid hasty constitutional legislation that would transform the character of the State of Israel, and we urge them to initiate a process of open, respectful, and tolerant deliberation with the aim of reaching broad agreements on these deeply consequential matters.

I'll park a copy of the letter with its signatories here for the next few months.

UPDATE, Jan. 31, 2023: Professor Peled today sent news of a companion statement by U.S. law professors.

Sunday, March 24, 2019

Duncan proposes unanimity requirement for U.S. Supreme Court to override Congress

UMass Law Professor Dwight Duncan
My colleague Professor Dwight Duncan has published an article in constitutional law,  A Modest Proposal on Supreme Court Unanimity to Constitutionally Invalidate Laws, 33:1 BYU J. Pub. L. 1.  Here is the introduction, footnotes omitted:

There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott to Lochner to Roe v. Wade to Citizens United, and even the recent Second Amendment decisions of Heller and McDonald, these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so is the subject of this article. I leave for another occasion the legal and practical questions of how to implement such a unanimity requirement.

While the audacity of this idea is perhaps remarkable, flying as it does in the face of our
unbroken history of Supreme Court cases decided by majority vote of the Justices, I would ask the readers’ indulgence or suspension of disbelief for long enough to at least consider my argument. Since I have no power to implement this idea, which depends solely on the cogency of the reasons which support it – and I invite discussion and contestation of the idea – the proposal can truly, if somewhat ironically, be called "modest."

Here in its final form, this article hit my desk just as Democratic presidential candidate Beto O'Rourke appears on the news evincing receptivity to some form of Supreme Court packing, and in a season just after the dramatic unfolding of the Kavanaugh hearings.  Duncan has been working on his modest proposal for a while longer than these events have been on TV, and his modest proposal has stood the test of peer reviews by many (me included).  I have been privileged to hear Professor Duncan speak on this subject more than once, and I have learned something new every time.  This article marks a worthwhile addition to the discussion of our Court, and the recollection that neither its composition nor its procedural customs are fixed in constitutional stone.