The Rule of the Courts

M. Akram Faizer

These examples support an understanding of the NWC as “repugnant to the rights-protecting project” of the Charter, even a “trap door out of rights protection.” 220 Indeed, beyond Canada, recent calls for a legislative override in Israel were described by former President of the Supreme Court of Israel Aharon Barak as threatening “the beginning of the end” of Israel – the “constitutional equivalent ‘of a coup with tanks.” 221 However, this negative perspective on the NWC omits the positive. As detailed above, unrestrained judicial review in the U.S. has two obvious negatives. First, it risks undermining democratic accountability by granting broad authority to ideologically inclined and socioeconomically privileged unelected judges with lifetime appointments to untether increasingly elusive and precarious legislative compromises in an increasingly divided country. Examples, detailed at length above, include the U.S. Supreme Court’s decisions to undermine the ability of the Affordable Care Act to deliver universal health care coverage to Americans, to gutter the VRA’s ability to protect racial minority voters and its “weaponization” of the First Amendment to invalidate campaign finance restrictions designed to protect the political interests of ordinary voters as compared to interests of corporations and the very rich. The second obvious defect is that it forces federal judges to play a guessing game as to whether the broader American political culture is sufficiently committed to the rule of law to enforce unpopular decisions. The evidence demonstrates that the Court’s historical acceptance of slavery, followed by its gutting of the Fourteenth Amendment’s Equal Protection Clause to countenance Jim Crow segregation was prompted by fear of undermining national cohesion as opposed to protecting the rule of law. Even ostensibly progressive uses of judicial review such as decisions 220 The Constrained Override, supra note 189 at 1732 citing Lorraine Eisenstat Weinrib, Learning to Live with the Constitutional Override , supra note 183 at 1732 citing Lorraine Eisenstat Weinrib, Learning to Live with the Override , 35 MCGILL L.J. 541, 563-64 (1990). de , 35 MCGILL L.J. 541, 563-64 (1990). 221 The Constrained Override, supra note 189 at 1732 citing Ex-top Judge Barak: “Put Me Before a Firing Squad” If It’ll Stop Move to Tyranny , TIMES OF ISR. (Jan. 8, 2023, 1:59 AM) (quoting Chief Justice Aharon Barak), https://www.timesofisrael.com/ex-top judge-barak-put-me-before-a-firing-squad-if-itll-stop-move-to-tyranny[https://perma.cc/2 GSB-T7P5] [hereinafter Interview with Aharon Barak ].

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