William & Mary Bill of Rights Journal


Rivka Weill


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.