This article aims to continue the recent neo-Elyean turn in comparative constitutional scholarship by further exploring the role of the courts in supporting and protecting democracy. In so doing, it refines and develops my previous work on the topic, and applies this fuller version to a highly visible current dispute. The article first examines the underlying conception of democracy that comparative political process theory is designed to protect; namely, constitutional democracy. It asks what this is and what role courts have in supporting it. The article then introduces the idea of ‘semi-substantive review’ as an integral and output-oriented part of a comprehensive comparative political process theory, alongside and in addition to the types of more purely procedural review I primarily emphasized in my previous work. Finally, the article employs the recent, highly controversial judicial reforms in Israel as a case study in applying the criteria for, and limits of, court intervention in my account. It analyses whether, why and how, in the event that the deeply contested bills become law (as so far one did), judges would be justified in acting to support and protect constitutional democracy.

The article discusses the current legal-political crisis in Israel against the backdrop of the judicial and political powers that have led to the present situation. The disastrous Yom Kippur War of 1973 weakened the government and public confidence in the political institutions. The weaknesses of the government enabled the Supreme Court to carry out a judicial revolution, which completely changed the country's legal system. The legal revolution entered a new stage when the Supreme Court held that the Basic Laws form part of Israel's constitution. This judicially created constitution opened the way for judicial review of legislation. Its weakness stems from the fact that Basic Laws are legislated in much the same way as ordinary legislation. As a result, the Knesset can easily override any ruling of the Court that voids a statute, by amending the relevant Basic Law. The Court is now struggling to find a means of gaining some control over the legislation of Basic Laws. At the same time, the present government declared its intention to carry out legal reforms that are in effect a counter-revolution to the judicial revolution. The article examines how the fluctuation in the political support of the Court affects its decisions.

This article focuses on the adoption of temporary measures within the generally rigid constitutional sphere. Commentators frequently contemplate the extent to which temporary constitutional measures are adequate and necessary within a constitution that is meant to be perpetuated. Some writers are in favour of temporary constitutionalism, claiming that it allows flexibility and relieves the counter-majoritarian problem. Others emphasise the devastating impact of intense implementation of temporary measures on the status and legitimacy of the constitution.

The article contends that as beneficial as temporary constitutionalism may be in some circumstances, its use should be scrutinised with great suspicion, especially when it is employed in weak constitutional regimes. In outlining the history of temporary constitutionalism in the State of Israel, the article illustrates how temporary constitutional amendments can be harnessed to undermine the democratic order. The Israeli use of temporary constitutionalism since 2009 reveals a new under-explored manifestation of ‘abusive constitutionalism’, referred to here as ‘abusive temporary constitutionalism’. With abusive temporary constitutionalism, incumbents can entrench their power against their opponents while avoiding both public accountability and judicial review of their actions. Drawing on the Israeli experience, the article outlines several signifiers (i.e. distinctive markers) which will allow judges in the future to monitor and suppress the development of the abusive employment of temporary constitutional amendments.

The phenomenon of social exclusion in Israel is a vivid demonstration of the Basic Laws' failure to fulfil their integrative role. Despite the ‘constitutional revolution’ and the Supreme Court's ongoing endeavour over the last two decades to instil a bill of rights through its jurisprudence, Israeli society has failed to fully internalise values of equality. In terms of legal jargon, individuals continue to claim and exercise ‘sole and despotic dominion’ over their private property in order to avoid contact with individuals belonging to certain minority groups. In many cases, such behaviour in the private sphere results in exclusion from the public sphere.

This phenomenon is especially astonishing considering the fact that many laws in Israel apply the right of equality to the private sphere. Furthermore, the Israeli Supreme Court has developed comprehensive human rights jurisprudence applicable to the private sphere. The gap between the law in the books and the law in action illustrates that effective implementation of human rights in the private sphere cannot be achieved solely by specific legislation or by jurisprudence that is sensitive to human rights. This argument is backed by several recent bills which preserve and enforce the exclusion of minorities, particularly of Arabs, from the public sphere. These bills illustrate that exclusion is indeed a growing phenomenon in Israeli society that cannot be overlooked. Moreover, they underscore the urgent need to entrench a direct obligation to apply human rights to the private sphere at the constitutional level. This will be achieved only when Israel adopts a full constitution.