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The paper conceptualizes two distinct yet interconnected modes of judicial activism: courts as intervening in the policies and actions of other branches of government and courts as involved in their policymaking process. It proposes empirical methods to assess these modes and investigates them using a case study of Israeli Supreme Court justices’ votes from 2010 to 2018. Contrary to common perception, the findings reveal that justices demonstrate low and declining tendencies to invalidate laws ( N = 544 votes in petitions challenging the constitutionality of laws) or policies established by the political branches ( N = 22,415 votes in HCJ petitions). Justices’ attitudes towards the ideological underpinnings of contested legislation or policies exhibit minimal to no statistically significant influence on their votes. However, the analysis reveals a discernible and increasing pattern of covert judicial involvement, wherein justices exert pressure on the state to revise its policy before issuing a final ruling. Additionally, there is a diminishing trend of dismissing petitions in limine without accepting them for substantive review. These findings suggest that ISC justices engage in relatively low levels of intervening activism but high levels of involved activism.
Keren Weinshall (Wed,) studied this question.