When Courts Do—and Don’t—Defend Democracy: Evidence from Israel with Andrew O’Donahue

When does judicial behavior defend democracy by upholding constraints on executive power? I study this question in Israel under Benjamin Netanyahu by analyzing quantitative data on over 16,000 panel decisions by Israel’s Supreme Court and qualitative interviews with high-ranking judges, lawyers, and politicians. I theorize that when judicial selection institutions disperse power (e.g., through a supermajority requirement), they limit court capture by the executive and preserve judicial constraints on executive power. I further theorize that judicial allies, or actors outside the judiciary who support anti-government decisions, explain variation in the judiciary’s power to rule against the executive and ensure executive compliance. I demonstrate the theory in Israel under Netanyahu and test the theory cross-nationally by using original data on judicial selection institutions in 139 countries. These findings illuminate when and why courts, a key bulwark against modern democratic backsliding, succeed or fail in constraining illiberal executives.
Andrew O’Donohue is the Carlson and Nelson Graduate Fellow at the Harvard Radcliffe Institute and a Ph.D. Candidate in Government at Harvard University, as well as a Nonresident Scholar at the Carnegie Endowment for International Peace. O’Donohue’s research has been published in The Journal of Democracy and Proceedings of the National Academy of Sciences Nexus, as well as in The Atlantic, Foreign Affairs, Foreign Policy, and The Washington Post. His research studies law and courts, democratic backsliding, and Middle East politics, with a focus on Israel and Turkey.