Constitutional Judicial Review, Chief Justices, and Judges' Preferences: Institutional Lessons and Israel's High Court of Justice

Abstract

Theoretical literature on courts, society and politics is usually divided between the attitudinal and the strategic institutional models in efforts to explicate courts' rulings and their judicial behavior. In this context of empirical analysis of judicial behavior, using insights from both models, we focus on judicial preferences of individual judges as a key for theoretical and empirical analysis of courts as institutional player. Accordingly, we offer to explicate Supreme Courts through an original examination of Israel’s Supreme Court, sitting as High Court of Justice (HCJ) looking into it as a dominant veto point. We have originally coded individual rulings creating a data set that includes more than 9000 judicial decisions made by forty-six judges on the Israeli Supreme Court, between 1995 till 2015. It covers the judicial stint of four Supreme Court Presidents. Among many original and challenging empirical findings, we find that HCJ judges uphold appeals against the government if those appeals are especially turned against the state’s religious institutions and if at least one judge on the bench is dissenting. We find that this judicial behavior varies due to judges’ preferences rather than the judicial preferences of the Court’s President or the political nature of the government and its coalition in the Parliament. Furthermore, unlike a prevailing perception of Israeli Supreme Court Presidents as the sole leaders of the HCJ, there are times when Supreme Court Presidents find themselves in a minority position within the Court that they supposedly lead. Thus, the veto point of the HCJ is a dynamic arena which its policy outputs stem from the preferences of judges behaving as a group of institutional veto players rather than a cohesive veto point. Our analyses repeatedly unveil that there is variance between court decisions that can be consistent with the judges’ preferences and consequent judicial activism. Hence, our findings call for a research program focused on individual judicial preferences as the key to further understanding of institutional behavior of Supreme Courts in parliamentary settings looking at judges as veto players whose rulings (decisions) are far from being self-evident.