1 The literature on this subject is immense and growing. The relative autonomy of positions on these subjects can be seen in every society. Interestingly, lawyers tend to be more supportive of judicial activism than people with a stronger base in other disciplines, especially social sciences. For notable judges who opposed judicial activism see Justices O.W. Holmes (Lochner v. NY, 198 U.S. 45 (1905) and Learned Hand, in the US (for Hand's position see Gunther, G., Learned Hand: The Man and the Judge (Cambridge, Mass., Harvard Univ. Press, 1994)Google Scholar; Moshe Landau (for example, his dissent in Benjamin Shalit v. Minister of Interior (1968) 23(ii) P.D. 477) and Menahem Elon (see his opinion in Zerzevsky (1990) 45(i) P.D. 749) in Israel. In England see Devlin, Patrick, “Judges and Law Makers”, (1976) 39 Mod. L.R. 1Google Scholar. A combination of progressive politics and caution regarding the role of the court can be found in Bickel, Aleander, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, Bobbs-Merrill, 1962)Google Scholar; Choper, J., Judicial Review and the National Political Process (Chicago, 1980)Google Scholar; Cover, R., Justice Accused: Anti Slavery and the Judicial Process (New Haven, Yale Univ. Press, 1975)Google Scholar; Ely, J., Democracy and Distrust: A Theory of Judicial Review (Harvard, 1981)Google Scholar; Nagel, Robert, Constitutional Cultures: The Mentality and Consequences of Judicial Review (UC Press, 1989)Google Scholar; Waldron, Jeremy, Law and Disagreement (Oxford, 1999)CrossRefGoogle Scholar. All of these individuals support strong and independent judiciaries. For a summary account of the debate in Germany see Kommers, Donald, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham, Duke University Press, 2nd ed., 1997) 55–57Google Scholar. For Canada, see Hogg, Peter, Constitutional Law of Canada (Scarborough, Carewell, 1992)Google Scholar. A plea for judicial restraint is made by Mandel, Michael, The Charter of Rights and the Legalization of Politics in Canada (1994)Google Scholar. For a recent comparative analysis see Jacob, et al. , Courts, Law, and Politics in Comparative Perspective (New Haven, Yale University Press, 1996)Google Scholar.

2 Throughout I keep the discussion on a general level. My reference to cases and particular debates and issues are designed to be illustrative. For a discussion on Israel, see Gavison, Dotan and Kremnitzer, , The Role of the Bagaz in Israel's Public Life (Magnes Press, forthcoming, in Hebrew)Google Scholar.

3 I use this careful formulation on purpose. It is often thought that institutional considerations always operate against judicial activism. However, institutional arguments may well suggest that if broad jurisdiction is advantageous in many but not in all spheres, and if differentiation is difficult, jurisdiction should be opened on all issues, with the necessary limits set by courts themselves through more discriminatory devices.

4 See Kelsen's analysis of the debate between positivism and natural law, in similar terms.

4a The status of judicial review of legislation in Israel is controversial. See supra n. 16.

5 This seems the position advocated by William, Quirk and Randall, Bridwell, Judicial Dictatorship (Transcation Pub., 1995)Google Scholar. See also Berger, R., Government by the Judiciary (2nd ed., 1997)Google Scholar.

6 See A. Bickel, supra n. 1.

7 See Choper, supra n. 1, at ch. 1; Wellington, H.H., “The Nature of Judicial Review”, (1982) 91 Yale L.J. 486CrossRefGoogle Scholar.

8 Wellington presents a comprehensive defence of judicial review as well as a systematic refutation of some of the main conceptual arguments.

9 A quick move from democracy to judicial review is made, for example, by the President of Israel's Supreme Court, Professor Aharon Barak, in his lectures, articles and judicial decisions. For a recent formulation see his “The Role of the Supreme Court in Democracy”, (1999) 3: 2Israel StudiesGoogle Scholar.

10 Dicey's, classical text, Introduction to the Study of the Law of the Constitution (London, MacMillan, 10th ed., 1961)Google Scholar chap. 1, still provides an eloquent and persuasive argument for this position.

11 In both Israel and the US, we see strong critiques of judicial activism, in the name of democracy, coming from religious circles. See e.g., Bork, R.H., Slouching Towards Gomorrah: Modern Liberalism and American Decline (Harper Collins, 1997)Google Scholar and the “End of Democracy” debate: Mitchell, Muncy (ed.), The End of Democracy? The Judicial Usurpation of Politics (1997)Google Scholar in the US. For an Israeli illustration see infra n. 14. This is one of the reasons I believe that we should adopt a procedural concept of democracy. Under it, judicial review, especially of the constitutional sort, does indeed have to surmount the “counter-majoritarian difficulty”, but this is often successfully done.

11a Vile, , Constitutionalism and the Separation of Powers, at 319Google Scholar.

12 Compare, for example, the decision of the Israeli Supreme Court on the applicability of judicial review to Presidential powers, despite an explicit denial of such review in the relevant statute, in Barzilai to the fact that President Bush pardoned all officials involved in the Iran Contra affair before he left office, and no one thought this an occasion to petition the courts. A distinction often made in this context is between judicial review of federalism-type separation, which is critical to federal governments, and judicial review of legislation concerning the scope of rights or other basic values. Holmes, for example, thought the American Supreme Court could have lived very well without judicial review over the Bill of Rights, but needed to determine questions of federalism. It should be recalled that both Marbury v. Madison, (1803) 5 U.S. (1 Branch) 135 and the Israeli Bergman decision (Bergman v. Minister of Finance (1969) 23(i) P.D. 693) related to review of this narrow sense of “separation of powers”. This is also the basis for Justice Landau's suggestion that only the institutional questions should be constitutionalized in Israel, and subjected to careful judicial review. See his A Constitution as a Supreme Law for Israel, (1970).

13 See Dicey's sensitive, and relevant discussion of the relationship between various kinds of constraints on political power: supra n. 10.

14 Going back to the dilemma mentioned earlier, it is a relief that this point works equally well against both supporters and critics of judicial activism in Israel. I believe Justice Barak is wrong when he suggests that democracy and the rule of law require judicial review and activism, but also that the religious parties are wrong in suggesting that the court is anti-democratic when it invalidates arrangements supported by the majority in the Knesset. The intricacies of the implications of democracy were dramatically disclosed in one of the debates between Barak and the religious parties: Barak wrote the opinion of the court in a decision upholding the right of an ultra-right religious party to register and participate in the elections, despite the fact that part of its platform involved a wish to make Israel a Halakhic state. Barak accepted the Registrar's conclusion that the party meant only to gain inspiration from Jewish Law. In an obiter he added that he left open the question whether a party which in fact wished to make Israel a theocracy could be banned, invoking the right of the state to defend its democratic nature. Some religious leaders took exception to Barak's remarks, arguing that they were anti-democratic because they meant the silencing of permissible political positions and aspirations. I hope it is clear the issue raised is not a question of the correct conceptual analysis of democracy.

15 See the discussions of the inadequacy of Marshall's reasoning in Bickel, supra n. 1, at ch. 1, and Robert L. Clinton, Marbury v. Madison and Judicial Review (1991). The legitimacy of judicial review of primary legislation may be based on explicit provisions in the constitutions, as in Canada and Germany. Kommers, supra n. 1, at 55, mentions that the clear constitutional mandate, and the fact judges of the constitutional court are elected by the political branches for 12 year terms are reasons that explain the support for its power of review.

16 I cannot go into this important subject here. For a more elaborate account, see Gavison, , The Constitutional Revolution: A Reality or a Self-Fulfilling Prophecy? (Jerusalem, The Israel Institute for Democracy, 1998, in Hebrew)Google Scholar.

17 I will not go into the relationships between private law and public law adjudication, although in many systems, much of private law is constitutionalized, making the question of the role of courts even more important. While this is a continuous trend in the US and German systems, the constitutionalization of private and criminal law in Israel is just beginning.

18 The tendency to weaken the distinction between the conceptual, descriptive and normative claims about adjudication is indeed a central feature of Dworkin's theory, which he sees as one of its main advantages, and his critics present as one of its major drawbacks. A recent formulation of Dworkin's, position can be found in Law's Empire (London, Fontana Press, 1986)Google Scholar. For Dworkin's defence of the court in Roe v. Wade see Life's Dominion (New York, NY, Knopf, 1993)Google Scholar. For a critique of that decision in terms of the role of the court, by a person sympathetic to the decision on its merits, see Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade”, (1973) 82 Yale L.J. 920.

19 It is interesting to note that even CLS people, or those who argue for other reasons that laws cannot bind, do not have to support judicial activism, if this is meant as a judicial tendency to replace the decisions made by the authorities in whom the original decision-making power is vested. Such scholars will have their own descriptive and normative theories of adjudication, and these may not necessarily require or justify judicial activism. A clear example is the progressive critique of the US Supreme Court's Lochner line of decisions. A similar critique is made today when courts seek to undermine legislative progressive decisions. For a critique of adjudication in such terms see Kennedy, D., A Critique of Adjudication (Cambridge, Mass., Harvard Univ. Press, 1997)Google Scholar. While the German analysis of the functions of courts remain much more “conservative”, they too find ways of explaining and justifying judicial creativity: Kommers, supra n. 1, at 124-131.

20 The “legislative” function of courts is strengthened and institutionalized in systems respecting some form of stare decisis, but courts in fact make laws in civil law countries where no such doctrine applies, simply because courts tend to follow previous decisions, so in fact the decisions of the courts determine to a large extent their future decisions. This is why civil law countries do describe the decisions of their courts. While Dworkin denies that what courts do is more than finding out the pre-existent meaning of laws, he cannot deny that often the way law is understood changes after judicial decisions. This is all I mean by the “legislative” function of the courts.

21 As I indicated above, there are legal philosophers who claim that no actual judicial decision is dictated by pre-existing laws. In part, because general propositions do not decide cases, and in part because when there is a tension between the apparent requirement of a law and common-sense understandings of the desirable result, most judges can use judicial techniques to reach a subjectively acceptable decision. But even Dworkin concedes that determination of sentencing in specific cases is not totally determined by pre-existing laws. Child custody decisions are notable examples of judicial decisions which cannot be dictated by legal norms. And the fact that Dworkin congratulates the court for decisions such as Roe v. Wade or Casey, and warns, for example, against judicial decisions opposing affirmative action (see his “Affirming Affirmative Action”, N.Y. Rev. Books, October 22, 1998, and “Is Affirmative Action Doomed?”, N.Y. Rev. Books, November 5, 1998), indicate that he recognizes both the doctrinal constraints of judges and the great social consequences of their decisions. If all the decisions constitute is the application of pre-existing laws, it is unclear why these consequences should be so great. The increasing tendencies of judges to seek compromises between parties is also a judicial function which does not consist of the application of pre-existing laws.

22 This account of the functions of law is based on Raz, Joseph, “The Functions of Law”, in The Authority of Law: Essays on Law and Morality (Oxford, Clarendon Press, 1979)CrossRefGoogle Scholar ch. 3. For a functional and comparative analysis of courts and their unique function see Shapiro, Martin, Courts: A Comparative and Political Analysis (Chicago, Univ. Chicago Press, 1981)Google Scholar.

23 To use the apt phrase of Hart, H.L.A., The Concept of Law. (Oxford, Clarendon Press, 1960)Google Scholar.

24 See the discussion of P. Hogg, supra n. 1, commenting on the problematic nature of advisory opinions. The US Supreme Court has decided against exercising this power. Kommers, supra n. 1, at 57, seems to support the position that the Constitutional Court would be better off without “abstract judicial review” (a position riot shared by members of the court itself).

25 Reprinted in (1978) 92 Harv. L.R. 353.

26 For the meaning of acoustic separation arid its functions see Dan-Cohen, Meir, “Acoustic Separation in Criminal Law”, (1984) 95 Harv. L.R. 625–677CrossRefGoogle Scholar. The court's reasoning is public and open. It must be based on principles that can be articulated and justified. In situations in which such principles may not be available, it May be better to leave the decision to low-visibility mechahisriis, less committed to publicity and principled decision-making.

27 See Sunstein, C., Legal Reasoning and Political Conflict (Oxford, 1996)Google Scholar; Shchauer, F., Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Oxford, Clarendon Press, 1991)Google Scholar.

28 The famous Brown v. Board of Education decision of 1954, in which the US Supreme court ordered desegregation of schools, is a case in point. Only when the political will joined the judicial decision did desegregation materialize, and once the political will waned — schools began re-segregating. For a sharp analysis see Rosenberg, Gerald, The Hollow Hope: Can Courts Bring About Social Change? (Chicago, Univ. of Chicago Press, 1991)Google Scholar.

29 The U.S. Supreme Court could have decided Dred Scott the same way without “volunteering” its offensive analysis: see Dred Scott v. Sanford, 60 U.S. 393 (1857), and Bickel's, analysis of the decision in “Citizen or Person? What is not Granted Cannot be Taken Away”, in The Morality of Consent (Yale, 1975), 31Google Scholar. Plessy v. Ferguson 163 U.S. 537 (1896) should have been decided differently, on the lines of the dissent, without suggesting that the law should force mixing and integration. In a situation like Korematsu (Korematsu v. U.S., 323 US 214 (1944)), where the U.S. Supreme Court was asked to uphold the detention of Japanese civilians during the Second World War, it would be best for the court to invalidate the orders. If they could not do that — a political question approach like Jackson's is much less damaging to the court than an explicit justification of the measures on their merits. This is one of the points on which I feel the Israeli Supreme Court has made itself too vulnerable by seeking to examine all issues on their merits. See Kretzmer, D., “40 Years to Israel's Administrative Law”, (1990) Isr. L.R.Google Scholar This frame of mind may have produced the most criticised Supreme court decision to date: Roe v. Minister of Defence, 13 November 1997 (not yet published), in which President Barak for the court upheld the continued administrative detention of Lebanese citizens, captured in various circumstances, so they could serve as “negotiating cards” in Israel's attempt to free its POWs held by Lebanese organizations. Justice Dorner, in dissent, invalidated the detention under the administrative detention law, and suggested that, if at all, it might be justified under the laws of war. President Barak, on the other hand, concluded that the decision was the right balance, in the circumstances, between human dignity and state security. The matter is now pending before a larger panel. (An English translation of the decision can be found on the web site of the Minerva Center for Human Rights, the Hebrew University of Jerusalem).

29a Modern times see quite an expansion of the judicial role for all of these reasons. For an account see Cappelletti, Mauro, The Judicial Process in Comparative Perspective (Oxford, Clarendon Press, 1989)Google Scholar.

30 These are, on purpose, conditionals. In fact, many critics of expansive courts suggest that they should make judgements on neither the morality of actions nor on complex social processes and consequences. While Brandeis introduced the factual brief showing consequences of alternative policies and decisions many decades ago, not all judges feel comfortable with the court becoming the forum of explicit legislative judgements of social utility. Note that in Lochner, supra n. 1, the majority of dissenters relied on the factual plausibility of the legislation in question, while Holmes dissented because of a second-order principle of a strong presumption in favour of judicial deference, which required no independent detailed analysis of social facts by the court. Nonetheless, Holmes himself counselled for candor, and encouraged judges to concede the legislative and policy-oriented nature of many of their common-law decisions. See his “The Path of the Law”, (1897) 10 Harv. L.R. 457CrossRefGoogle Scholar, and my discussion in “Holmes' Heritage: Living Greatly in the Law”, (1998) 78 Boston Univ. L.R. 843Google Scholar.

31 It is important to note that counter-majoritarian difficulties are not only the problem of courts. Legislative majorities at times may act to promote the preference of the majority of the electorate. They will tend to do so since they want to be reelected. Nonetheless, at other times, they may seek to promote values (or interests) which go against the preferences of that majority. President Bill Clinton's impeachment proceedings are an interesting example of the latter. Legislation serving the interests of legislators themselves is another familiar example. In such a case, what is “really” required by democracy? And what institutional design, if any, should be undertaken to protect it?

31a For a sensitive account see, e.g., Przeworski, Adam, “Democracy as a Contingent Outcome of Conflicts”, in Elster, and Slagstaad, , eds., Constitutionalism and Democracy (1988), at 59CrossRefGoogle Scholar.

32 I find some of the debate between liberals and civic-republicans misleading on this point. Both of these approaches, as far as I can see, advocate the need for such a balance. The differences between particular arrangements or conceptions of citizen-ship can be described and evaluated equally well within the two traditions.

33 It is one of the strengths of the American process of constitution-making that these insights are present in very clear form in the Federalist papers. See the perceptive discussion in Kahn, Paul, Legitimacy and History: Self-Government in American Constitutional History (New Haven, Yale, 1992)Google Scholar.

34 Such cases are likely in rifted societies, and especially in societies where minorities are persecuted by the majority, and excluded from the decision-making processes. Progressive laws are made by the majority to protect itself, but are not applied to the minority. An example of such move is the fact that most right-wing politicians and lawyers in Israel object to the use of administrative detention against Jewish activists, but they do not move to repeal the legislation, since they think there are very good reasons for using the measure against Palestinians. Similar double standards are reflected in their attitudes to the interrogative methods used by the security services. See Kretzmer, D., “The Right Discovers Human Rights”, in Cotran, Eugene and Mallat, Chibli, eds., The Arab-Israeli Accords: Legal Perspectives (Kluwer Law International, 1996)Google Scholar.

35 Spann, G., Race Against the Court (New York, NYU Press, 1993)Google Scholar, who argues that the courts have not protected blacks where such protection was not supported by the majority. See also Choper, supra n. 1.

36 This is fully consistent with the majority being very angry with the court for not letting it have “blood”. Ulyssess was angry with his sailors for not letting him go to the sirens. This is the sense in which the U.S. court failed in Korematsu, supra n. 29, and the Israeli Supreme Court failed in the case of the deportation of the 415 Hammas activists in 1992, Association for Civil Rights in Israel v. Minister of Defence (1992) 47(i) P.D. 267. There may be powerful political constraints which may make courts likely to fail in this way. Under such circumstances, they should at least not legitimate the decision on the merits. The Israeli decision in the deportation case meets this secondary requirement. At times, judges justify their decisions to reject a demand by the majority by arguing that the demand is a momentary ‘call for blood’ when this description is not applicable. In such cases, we should beware of dismissing the arguments made on behalf of the majority too quickly. This is the way I see Justice Barak's claim that the court must defend the freedom of speech of the likes of Kahane because the public outcry against him is an instance of “transitional ill spirit”. I do not see the prohibition of blatantly racist speech as a semi-lynching situation. This is an extremely complicated question, open to debate, but de-legitimation of the attempt to prohibit such speech cannot be justified. See Strum, P., When the Nazis Came to Skokie (1997)Google Scholar.

37 The question of slavery until the reconstruction is the most obvious example of this situation. See the perceptive discussion of the predicament of anti-slavery judges in Cover, supra n. 1.

38 For a general discussion see Gavison, , “The Right to be Elected and the Lessons of History”, in Gavison, and Kremnitzer, , eds., Gvurot Le-shimon Agranat (Jerusalem, Graph Press, 1987, in Hebrew)Google Scholar. The bottom lines of the decisions of the Israeli court on this sensitive matter are positive: Arab parties voicing a national message and religious parties are both allowed to participate, while the law against parties which are anti-democratic, racist or denying that Israel is the home of the Jewish People was used to ban Kahane's party, based on its support for the denial of political rights to non-Jewish citizens of Israel. After the Weimar trauma, Germany included the power to ban anti-democratic parties in its basic law, and the law was invoked in the 1950's to ban both the neo-Nazi and the Communist parties. These decisions were criticized, and the law has not since been invoked.

39 Justice Cheshin stresses this special group of cases in both his long decision concerning the question of the existence and justification for an entrenched constitution in Israel (Bank Hamizrahi Hameuhad Ltd v. Migdal (1993) 49(iv) P.D. 221) and in his dissent in Merkaz Hashilton Hamekomi v. The Knesset (1995) 50(iii) P.D. 490. I believe he is right that in the latter case, there was a clear indication for judicial invalidation of the challenged legislation, in which present-day legislators granted their colleagues unique advantage over new competitors.

40 In Israel, for example, the visibility of this issue is much more contained than in the U.S. and some other places. There was a heated debate in parliament before legislation in 1977 that allowed for legal abortion for some types of cases, including a wish by the mother not to overburden herself and her children. The religious parties managed to limit the right of abortion in the latter type of case in 1980. Since then the visibility of the subject has declined. Throughout, the courts have been left out of the issue. Recently, however, there has been an attempt to step up the enforcement of anti-abortion laws.

41 See e.g., Ely, supra n. 18.

42 The latter invalidated a law legalizing abortion, based on the constitutional right to life. For a detailed discussion see Neumann, G., “Casey in the Mirror: Abortion, Abuse and the Right to Protection in the US and Germany”, (1995) Am. J. Comp. L. 273Google Scholar and sources cited there. For the Canadian case see Hogg, supra n. 24, and Mandel, supra n. 1, at pp. 405-454.

43 See the criticism of some of the applications of the law granting rights to disabled persons in Howard, P.K., The Death of Common Sense: How the Law is Suffocating America (New York, Random House, 1994)Google Scholar.

44 See the discussion of the costs of expansive rights talk in Ann Glendon, Mary, Rights Talk: The Impoverishment of Political Discourse (Free Press, 1991)Google Scholar.

45 See the fascinating discussion in Rosenberg, supra n. 28.

46 Both are criticised e.g., in Bork, supra n. 11, at 99-102 and 172-192 respectively. But only the decision on abortion (and euthanasia and gay rights) elicited the vicious attacks on the legitimacy of the U.S. Supreme Court in the First Things Debate. I believe that the Israeli Supreme Court could have (and should have) decided other-wise in both the deportation case (supra n. 36) and the hostages case (supra n. 29).

47 See Feely, et. al., eds., The Impact of Supreme Court Decisions.

48 Some people think that the idea of “objectivity” and neutrality in adjudication, in this sense, is an incoherent myth used to perpetuate and disguise power. My argument is not addressed to them. I speak to those who believe that in many cases there is a sense in which we can identify what the law says, and therefore see whether the judges follow the law or manipulate it, and that while the distinction is not always easy — it does create a presumption in favor of following the law in situations of conflict.

49 Korematsu, supra n. 29, and the English decisions regarding freedom of movement of aliens belonging to enemy countries are good examples. Compare also the different treatment given to Nazis and communists during the Weimar period, Gavison, supra n. 38. For present realities in Israel, see Kretzmer, supra n. 34. It should be noted that in most countries, emergencies are of short duration. In Israel, the system has been operating under a state of emergency since its inception. It produced mainly judicial restraint, judicial deference to the security authorities with very few notable exceptions.

50 This is more or less where the American court ended up after the New Deal period. In Canada the situation is still fluid, despite the fact that they have explicitly taken the right to property out of the Bill of Rights. See Mandel, supra n. 1, especially at 259-336. In Israel, the right to property was included in Basic Law: Human Dignity and Freedom without much thought, and it is combined with the fact that the right protected most strongly is that of freedom of occupation. The initial directions seem to be a systemic position supporting free market forces, Barak, Aharon, “The Economic Constitution of the Sate of Israel”, 4 Mishpat u-Memshal 357Google Scholar; E. Salzberger and S. Keidar, “The Quiet Revolution — More on Judicial Review Under the New Basic Laws”, ibid., at 489, but it is much too early to predict how matters will develop.

51 A good example of controversial decisions not connected to structural rifts are those concerning custody of children or arrangements of surrogacy. See e.g., Nahmani v. Nahmani (1995) 49(i) P.D. 485, in Israel. These are hard decisions, especially when they are not regulated clearly by the law. But they need to be made, and the main obligation of judges in such cases is to be candid, and refrain from presenting the cases as if they raise legal issues. Judges have residual powers to decide these cases, and they should exercise them to the best of their abilities.

52 In Israel, for example, there is a systemic discrepancy between arrangements within the secular-religious divide and arrangements in the Jewish-Arab divide. Most of the former are products of negotiation and compromise, while most of the latter are products of unilateral Jewish decisions. The Court should therefore be more willing to invalidate arrangements belonging to the latter group. In actual fact, however, the opposite is the case: The court shows great deference to the decisions of the authorities concerning the Arabs, and it takes an active stand towards arrangements in the state-religion realm. The court's activism in the latter field is responsible, in part, for the intensity of the attacks it receives from the religious side of the political map.

53 See the comprehensive and subtle account of G. Spann, supra n. 35.

54 Judges cannot undermine the security efforts of “their” society when it is fighting against others. The Israeli courts are inevitably part of the Zionist effort of building the Jewish state. See Lahav, P., Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley, California, Univ. California Press, 1997)Google Scholar. The Israeli Supreme Court (and the U.S. Supreme Court) have a pronounced majority of secular liberals. And all judges, especially judges of Supreme Courts, are well-off and members of the established elites of their societies.