On the Nexus Between the Strength of the Separation of Powers and the Power of the Judiciary

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This Article makes four novel arguments: (1) There is an inverse relationship

between the strength of a separation of powers structure and the strength of the

judiciary. In a strong separation of powers structure, one should expect a weaker

judiciary, and vice versa. This nexus exists empirically, and is supported on normative and strategic grounds. (2) This nexus is manifested through a web of common

law doctrines that developed to support a given separation of powers structure and

shape the judicial oversight of the political branches. This Article identifies a list of

common law doctrines—including standing, justiciability, deference, and judicial

interpretation techniques—which substance is derived from the strength of the

separation of powers in a given system. (3) Though scholars traditionally study these

common law doctrines independently from each other, this Article argues that they

are all connected. (4) Lastly, courts understand that the content of each of these

doctrines is affected by considerations related to the separation of powers. Yet,

while developing these common law doctrines, the courts have failed to connect

these various doctrines, and to identify the connection between the strength of the

separation of powers and the resulting content of common law doctrines that are

required to support it. The courts are not alone in their failure to see the connection;

scholars of comparative law often apply doctrines from one system to another

without being aware of this nexus.

This Article supports its argument by juxtaposing two Supreme Court decisions

from two democratic common law countries dealing with similar dilemmas: whether

immigration bans based on nationality are constitutional, even though they prevent

citizens from uniting with their foreign family members. In both countries, the

Courts dealt with a similar dilemma, and reached similar results of non-intervention.

Yet, the reasoning of both Courts vastly differed. By analyzing how the United

States and Israel—which are located on the opposite sides of the spectrum regarding

separation of powers—construct their judicial reasoning to a similar problem, this

Article aims to examine the inner workings of both systems’ separation of powers.

This Article contends that these different structures lead to vastly different common

law doctrines that inform judicial reasoning.

Suggested citation:

Weill, Rivka, On the Nexus Between the Strength of the Separation of Powers and the Power of the Judiciary (March 15, 2022). 31 William and Mary Bill of Rights Journal 705 (2023).