Both the United States and Israel have powerful judiciaries which have accorded themselves the authority to strike down government actions they deem unconstitutional. However, comparing their respective histories reveals a paradox for scholars of democratic erosion: in the U.S., judicial review has been a tool by which the right has eroded democracy, yet in Israel, it has been a democratic safeguard restraining an authoritarian government. This provides an important lesson: when political contexts are different, the same institutional mechanism can either erode or bolster democracy.

Judicial review is the power of independent courts to evaluate whether actions taken by executive or legislative branches of government violate their country’s constitution, and if so, nullify them. In the United States, judicial review is not explicitly enshrined in the Constitution, but was established by the Supreme Court itself in Marbury v. Madison (1803).^[1] Similarly, judicial review was also a self-granted power for the Israeli Supreme Court. In Mizrahi Bank v. Migdal (1995), the Court held that Israel’s Basic Laws functioned as Israel’s constitutional framework and that the judiciary may strike down legislation that violates them.^[2] Both countries’ judiciaries are unelected and not directly accountable to voters. Opponents of judicial review argue that judicial review is undemocratic because it gives an unelected elite power to override majority will, while proponents of judicial review argue that it safeguards the Constitution and minority rights, guardrails which are essential to democracy.

In the United States, the Supreme Court has used its power of judicial review to erode many democratic accountability mechanisms, both horizontal (that is, by other governmental bodies) and vertical (that is, by voters). In the landmark case Trump v. United States, the Court expanded presidential immunity from prosecution for “official acts.” This meant that Trump could not be held accountable for anti-democratic acts: weaponizing the Justice Department to spread false claims of voter fraud and encouraging Vice President Pence to subvert the electoral college. Again, in Trump v. Slaughter, the Court held that “Congress has no authority to place statutory limits on the president’s ability to unilaterally remove people serving on bipartisan multimember boards or commissions for any reason.” This destroys the power of bureaucracies to serve as a check on government action, since the President is allowed to replace their members at will without just cause. In Louisiana v. Callais, the Court weakened Section 2 of the Voting Rights Act, clearing the way for states to redraw racially gerrymandered districts that dilute the voting power of minorities.^[3]

A possible counterargument is that some recent Supreme Court decisions have blocked antidemocratic actions by Trump, including blocking attempts to restrict mail-in ballots.^[4] However, Varol (2015) argues that occasional rulings by the judiciary against an authoritarian regime’s wishes can ultimately serve the regime’s interests by bolstering a false image of functioning checks and balances to the world, “so long as the judiciary does not pose a real threat to central areas of political control.”^[5] Varol’s argument can be applied to the Court’s actions: their rulings in Trump’s favor—especially Trump v. United States—have arguably been more impactful than the ones against him. Yet, the adverse decisions give them the appearance of independence.

By contrast, judicial review in Israel has served as an important check on governmental power, slowing democratic erosion by the Netanyahu regime. The Israeli Supreme Court’s power of judicial review is unusually strong: it can rule on almost any policy matter and anybody can bring suit even if unaffected by it directly.^[6] The reasonableness law allows it to strike down any decision by an elected or public official it deems “extremely unreasonable.” The Court has historically used this power to block the appointment of corrupt officials.^[7] This year, the Court blocked the government from granting the position of state comptroller to Netanyahu’s personal lawyer—a blatant act of clientelism—and banning Arab parties in the opposition from competing in Israeli elections. Israel’s Supreme Court challenges Varol’s theory that “judges are unlikely to engage in a sustained resistance effort against powerful incumbents.”^[8]

A constitutional crisis erupted in 2023 when the government sought to weaken the power of the judiciary. A proposed bill sought to expand political influence over the appointment committee, repeal the reasonableness law, and give the Knesset the ability to override court decisions. Netanyahu’s governing coalition defended the bill as reining in judicial activism in favor of popular sovereignty. In response, mass protest by the Israeli people, and a ruling by the Supreme Court in self-defense, stopped many of these actions. Nonetheless, in 2025 the government successfully passed legislation increasing their power over the judicial appointment committee.^[9] Justice Minister Yariv Levin has pledged to resume efforts to reshape the Court if the right wing is victorious in the October 27 elections.^[10]

The difference could not be more stark: in the United States, a right-wing authoritarian government depends on the Supreme Court to increase its power, while in Israel, the right-wing authoritarian government is at odds with the Supreme Court. What explains this difference?

One reason is constitutional structure: Israel is a parliamentary democracy; whereas the US is a presidential one. The American president is elected independently of the legislature, with all three branches designed to serve as a check on one another. By contrast, Israel’s parliamentary system fuses executive and legislative power: the chief executive is chosen by the legislature. This means that the judiciary is one of the only checks on the Israeli government’s power.

The appointment process is also different, with Israel’s judiciary being, until recently, more independent. U.S. Supreme Court Justices are appointed by the president and confirmed by the Senate. While their power is independent after being appointed, they have measurable partisan leanings according to the president who appointed them. The Supreme Court has been subject to political capture in recent decades by the right wing Federalist Society, which has allied with President Trump to pipeline conservatives from law schools to the judiciary. Six of the nine current justices are Federalist Society affiliates, and an analysis of 25,000 Supreme Court votes from 1986-2022 found that justices affiliated with the Society were 10 percentage points more likely to vote in a conservative direction than non-affiliated justices.

Comparatively, Israeli Supreme Court Justices are appointed by a committee comprising both politicians and judges. Before the 2025 reforms, seven out of nine members had to agree to advance a candidate, ensuring consensus. It was therefore harder for political interests to capture the appointment process. However, this changed with Netanyahu’s 2025 reforms, which gave politicians and their representatives six out of nine seats, and changed the threshold to a simple majority. Set to go into effect after the 2026 elections, this law gravely risks the independence of Israel’s judiciary.^[11]

Elections on the horizon for both countries may bring reforms, for better or for worse, to their Supreme Courts. If the U.S. Supreme Court is made more politically independent, it may become a better tool for horizontal accountability. If the Israeli right wing is able to successfully capture the Supreme Court, as has been the case for the U.S., the Court’s role may also shift over time from a safeguard for democracy to a mechanism for its erosion.

Bibliography

Abrams, Elliott. “Israel and the Debate over the Role of the Judiciary in Democratic Government.” Council on Foreign Relations, March 16, 2023. https://www.cfr.org/articles/israel-and-debate-over-role-judiciary-democratic-government.

Boxerman, Aaron. “In Controversial Shake-Up, Israeli Lawmakers Give Themselves More Power to Choose Judges.” New York Times, March 27, 2025. https://www.nytimes.com/2025/03/27/world/middleeast/israel-netanyahu-judges.html.

Brennan Center for Justice. “U.S. Supreme Court Blocks Postal Service from Restricting Mail Ballots.” Press release, September 14, 2026. https://www.brennancenter.org/our-work/analysis-opinion/us-supreme-court-blocks-postal-service-restricting-mail-ballots.

Cohen, Amichai. “Doing Away with the Standard of Extreme Unreasonableness.” Israel Democracy Institute, December 31, 2023. https://en.idi.org.il/articles/50000.

Haklai, Oded, and Andrew O’Donohue. “Israel’s Slide into Competitive Authoritarianism.” Journal of Democracy, online exclusive, October 2026. https://www.journalofdemocracy.org/online-exclusive/israels-slide-into-competitive-authoritarianism/.

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Stark, Hunter. “Louisiana v. Callais: The Silencing of African-American Representation and Political Opposition in the Trump Administration.” Democratic Erosion Consortium, October 9, 2026. https://democratic-erosion.org/2026/10/09/louisiana-v-callais-the-silencing-of-african-american-representation-and-political-opposition-in-the-trump-administration/.

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^[1] United States Courts, “About the Supreme Court,” accessed October 21, 2026, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about.

^[2] Zachary Shemtob, “The Supreme Court of Israel,” SCOTUSblog, August 28, 2026, https://www.scotusblog.com/2026/08/the-supreme-court-of-israel/.

^[3] Hunter Stark, “Louisiana v. Callais: The Silencing of African-American Representation and Political Opposition in the Trump Administration,” Democratic Erosion Consortium, October 9, 2026, https://democratic-erosion.org/2026/10/09/louisiana-v-callais-the-silencing-of-african-american-representation-and-political-opposition-in-the-trump-administration/.

^[4] Brennan Center for Justice, “U.S. Supreme Court Blocks Postal Service from Restricting Mail Ballots,” press release, September 14, 2026, https://www.brennancenter.org/our-work/analysis-opinion/us-supreme-court-blocks-postal-service-restricting-mail-ballots.

^[5] Ozan O. Varol, “Stealth Authoritarianism,” Iowa Law Review 100, no. 4 (2015): 1691.

^[6] Elliott Abrams, “Israel and the Debate over the Role of the Judiciary in Democratic Government,” Council on Foreign Relations, March 16, 2023, https://www.cfr.org/articles/israel-and-debate-over-role-judiciary-democratic-government.

^[7] Amichai Cohen, “Doing Away with the Standard of Extreme Unreasonableness,” Israel Democracy Institute, December 31, 2023, https://en.idi.org.il/articles/50000.

^[8] Varol, “Stealth Authoritarianism,” 1689.

^[9] Oded Haklai and Andrew O’Donohue, “Israel’s Slide into Competitive Authoritarianism,” Journal of Democracy, online exclusive, October 2026, https://www.journalofdemocracy.org/online-exclusive/israels-slide-into-competitive-authoritarianism/.

^[10] Jerusalem Post Staff, “Levin: Right-Wing Election Victory Will ‘Fundamentally Alter’ Supreme Court,” Jerusalem Post, October 13, 2026, https://www.jpost.com/israel-news/article-911597.

^[11] Boxerman, Aaron, “In Controversial Shake-Up, Israeli Lawmakers Give Themselves More Power to Choose Judges,” New York Times, March 27, 2025, https://www.nytimes.com/2025/03/27/world/middleeast/israel-netanyahu-judges.html.