On the Nexus between Separation of Powers and Judicial Power

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This article argues that the weaker a country’s separation of powers, the stronger its judiciary tends to be, and vice versa. This inverse relationship shapes how courts develop and apply common law doctrines like standing, justiciability, deference, and interpretation.

By comparing two landmark decisions—Israel’s Adalah case (2006) and the U.S. Supreme Court’s Trump v. Hawaii (2018)—the article shows how courts in different systems reach similar non-interventionist outcomes using very different reasoning, rooted in their structural frameworks.

• In the U.S., a strong separation of powers leads to doctrines that limit judicial power.

• In Israel, a weak separation structure pushes courts to expand their role, but also leaves them vulnerable to political retaliation.

The article concludes that judicial doctrines cannot be understood in isolation—they are products of the broader constitutional structure. Reforming judicial power without strengthening checks on the political branches is destabilizing.

Suggested Citation:

On the Nexus between Separation of Powers and Judicial Power, VerfBlog, Dec. 21, 2022.