Latest / Logosofia no Dia a Dia / How 4 Democracies Decide If Laws Are Valid
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- [Prompt] custom: Judicial review is one of the most important concepts in understanding how modern democracies are de | Hosts: corn, herman [Response] Corn: Daniel sent us this one — he studied law at University College Cork years ago, and judicial review was one of those concepts that stuck with him. The core question is, how do different democracies actually apply it? Because the variance is striking. You've got Ireland and the US with written constitutions and courts that can strike down laws. Then you've got Israel, where there's no constitution at all but the Supreme Court still does it. And the UK, where Parliament is sovereign and courts technically can't strike down anything. He's asking what the mechanisms are, how standing rules work as a filter, and what happens in places where constitutionality can't be directly challenged. Herman: This isn't academic right now. Israel's judicial reform crisis from twenty twenty-three through this year has been exactly about this — what happens when there's no written constitution to anchor review, but the court acts like there is one. The Knesset passed a bill limiting the reasonableness standard in July twenty twenty-three, and the Supreme Court struck it down in January twenty twenty-four. A court striking down a law that was about limiting the court's own power, with no constitution to point to. Corn: That's the kind of circular legal drama that makes your head spin. The court said "we have the power to review this law that says we don't have the power." And they won. Herman: The reform isn't settled. But the point is, judicial review isn't some dusty textbook concept — it's the mechanism that decides whether a law lives or dies. And different countries have built wildly different machinery for that decision. Corn: We're going to walk through four systems today. Ireland, the US, Israel, and the UK. Four approaches, one core tension — unelected judges overruling elected legislatures. How each country justifies that, or doesn't, tells you a lot about what they think democracy actually means. Herman: Daniel's point about locus standi is the perfect entry point, because standing rules are the hidden lever. They determine who even gets to knock on the courthouse door. Narrow standing, like Ireland's personal interest test — fewer cases, but the ones that get through are concrete. Broad standing, like Israel's pre-reform approach where any citizen could challenge a law affecting the public interest — the court becomes a kind of national ombudsman. Both have tradeoffs. Corn: Which is a fancy way of saying, before we even get to whether a law gets struck down, we have to ask who's allowed to complain about it. And the answers range from "basically anyone with a pulse" to "you need to show the law specifically ruined your Tuesday. Herman: And that's where we're headed. Ireland and the US first — the classic written-constitution model — then Israel and the UK, where the whole thing runs on improvisation and parliamentary theater. Corn: Improvisation and parliamentary theater. You just described half of democratic governance. Herman: I aim for accuracy. Corn: Let's start with the thing itself. What is judicial review, stripped of the jargon? Herman: At its core, it's the power of courts to assess whether a law or government action is valid under a higher law. In a system with a written constitution, that higher law is the constitution itself. The court asks — does this statute conflict with the constitutional text? If yes, the statute falls. It's a hierarchy — constitution at the top, ordinary legislation below. Corn: The hierarchy only works if someone enforces it. That's where judicial review comes from. Herman: And here's the thing most people don't realize — judicial review isn't actually in the US Constitution. The Constitution never says "courts can strike down laws." It was invented by the Supreme Court itself in Marbury versus Madison in eighteen oh three. Chief Justice John Marshall basically said, if the Constitution is supreme law, and courts interpret law, then courts must interpret the Constitution and refuse to enforce anything that contradicts it. It was a power grab that everyone just... Corn: The original "we've decided we can do this, and good luck stopping us. Herman: And it became the global template. Ireland's nineteen thirty-seven Constitution explicitly gives the Supreme Court this power under Article thirty-four — they didn't need a Marbury moment, they just wrote it in. But the logic is the same. The constitution is the supreme law of the land, and the court is its guardian. Corn: Which brings us to the counter-majoritarian difficulty. Alexander Bickel coined that phrase in nineteen sixty-two, and it's been the central anxiety of judicial review ever since. Why should nine unelected judges get to overturn a law passed by hundreds of elected representatives? Herman: Different systems answer that differently. The US answer is essentially — the Constitution represents a deeper, more enduring form of democratic consent than any single election. It was ratified by the people, it's hard to amend, and the court's job is to enforce those long-term commitments against short-term political passions. Whether you buy that depends on whether you think a document ratified in seventeen eighty-eight by a bunch of property-owning white men represents "the people" in any meaningful sense today. Corn: There's the Herman Poppleberry understatement of the episode. Herman: I'm just saying the theory has tension in it. Ireland's answer is similar but more recent — the nineteen thirty-seven Constitution was actually ratified by referendum, so there's a clearer chain of popular legitimacy. But the structural problem is the same. Judges aren't elected. They serve long terms or for life. And they're making decisions with massive policy consequences. Corn: Which is why standing rules matter so much. If you're going to have unelected judges wielding this power, you'd better have a filter on which cases they hear. Otherwise the court becomes a super-legislature where anyone with a grievance can try to undo a law they don't like. Herman: That's exactly what Daniel was getting at with locus standi. In Ireland, the test was established in Cahill versus Sutton in nineteen eighty. The plaintiff has to show they've been personally affected by the law they're challenging. Not just that they disagree with it, not that it's bad policy — they need a personal interest at stake. Corn: Which sounds reasonable until you realize it means some laws might never be challenged because the people most affected can't afford to bring a case, or don't exist yet, or are too diffuse to meet the test. Herman: That's the tradeoff. And Ireland learned this the hard way. The Society for the Protection of Unborn Children versus Grogan case in nineteen eighty-nine — SPUC sued to stop student unions from distributing information about abortion services in the UK. The standing question was whether SPUC had a personal interest in stopping this. The Supreme Court said yes, because SPUC's mission was to protect unborn life, and that gave them standing. But it opened a whole debate about whether organizations with ideological missions should be able to use the courts to enforce their views. Corn: Compare that to the US. The standing doctrine from Lujan versus Defenders of Wildlife in nineteen ninety-two requires three things — injury in fact, causation, and redressability. You have to show you suffered a concrete harm, that the defendant caused it, and that the court can fix it. It sounds technical, but it's actually stricter than Ireland's personal interest test in some ways. In Lujan, environmental groups couldn't show they'd been personally harmed by a regulation affecting endangered species abroad, so they lost standing. Herman: Which is fascinating because the US is often seen as more litigious, but its standing rules actually filter out a lot of cases that would get heard in other systems. The injury has to be particularized — not just "I care about this issue," but "this law cost me money, or liberty, or property. Corn: Yet the US Supreme Court still hears some of the most politically explosive cases imaginable. NFIB versus Sebelius in twenty twelve — the Obamacare individual mandate challenge. Standing wasn't the issue there because the plaintiffs could show they'd be forced to buy insurance they didn't want. The real fight was about whether the mandate was constitutional under the commerce clause or the taxing power. The court upheld it as a tax, five to four. One vote the other way, and the entire US healthcare system looks different. Herman: That's the thing about judicial review in a system with a written constitution and strong courts — it puts enormous pressure on individual judges. John Roberts wrote that opinion, and people still debate whether he switched his vote mid-deliberation. The counter-majoritarian difficulty isn't abstract when one person's reasoning determines whether thirty million people keep their health insurance. Corn: That's the model Daniel would have studied at Cork — the written constitution, the supremacy clause, the standing filters, the high-stakes individual cases. But then you look at Israel and the UK, and the whole framework dissolves. No supremacy clause. Courts reviewing laws anyway. Herman: That's the question that makes the next part of this conversation genuinely strange. Because Israel and the UK both lack a written constitution, but they've arrived at radically different solutions. The UK solution is elegant in its honesty — Parliament is supreme, full stop. Courts can't strike down primary legislation. But they can issue a declaration of incompatibility under the Human Rights Act of nineteen ninety-eight, which is basically the judicial equivalent of tapping Parliament on the shoulder and saying "excuse me, this law violates human rights, you might want to look at that. Corn: The judicial equivalent of a strongly worded letter. Herman: And sometimes it works. The Belmarsh case in two thousand four — the government was detaining foreign terror suspects indefinitely without trial. The Law Lords issued a declaration of incompatibility, said it violated the European Convention on Human Rights. Parliament didn't immediately fix it, but the political pressure built, and eventually the law was replaced. It's slow, it's messy, but rights were protected — eventually. Corn: Israel took a completely different path. No constitution, but fourteen Basic Laws that the Supreme Court decided, in the nineteen nineties, function as a constitution anyway. The nineteen ninety-two Basic Law on Human Dignity and Liberty was the trigger. The court said — this Basic Law has constitutional status, and we can strike down ordinary laws that violate it. Aharon Barak, the chief justice at the time, called it a constitutional revolution. And it was — except the constitution wasn't written by a constitutional assembly or ratified by referendum. It was assembled piecemeal by the Knesset and elevated by the court itself. Herman: Which is why the legitimacy question in Israel is so much sharper than anywhere else. The US court can point to the Constitution and say "we're just enforcing what the people ratified." The Irish court can point to the nineteen thirty-seven Constitution and say the same. The Israeli court is pointing to Basic Laws that were passed by ordinary Knesset majorities and saying "these are now supreme, and we're the ones who get to say so. Corn: That brings us to the twenty twenty-three reform crisis. The government proposed limiting the reasonableness standard — a judicial doctrine the court had used to strike down government decisions it deemed unreasonable. The Knesset passed it. The court struck it down in January twenty twenty-four, by a vote of twelve to three. The first time in Israeli history the court struck down a Basic Law amendment. Herman: Twelve to three is a strong majority, but the dissent is worth reading. Some justices argued the court was overreaching — that striking down a Basic Law amendment was different from striking down ordinary legislation, because Basic Laws are the closest thing Israel has to a constitution. If the court can strike down amendments to the quasi-constitution, what check is there on the court? Corn: That's the answer. In a system with no formal constitution, no supermajority amendment process, and a court that claims the power to review everything including its own governing framework — there is no check. The court is the check on itself. Which is either a brilliant design for protecting rights against populist majorities, or a complete abandonment of democratic accountability, depending on who you ask. Herman: That's the tension Daniel's question gets at. When you study judicial review through the Irish lens — written constitution, clear standing rules, a defined hierarchy of laws — it seems like a technical legal exercise. But when you look at Israel, or even the UK, you realize it's fundamentally a political question dressed in legal clothing. Who gets the final word? Judges or legislators? And there's no objectively correct answer. Corn: With all this variation — four countries, four completely different architectures for answering the same question — what can we actually learn about how judicial review works, and when it breaks? Herman: I think there are three big takeaways. First, judicial review isn't binary. It's a spectrum. On one end, you've got strong-form review like the US and Ireland, where courts can strike down laws and legislatures have limited recourse. On the other end, you've got weak-form review like the UK, where courts can flag problems but can't force fixes. Israel sits somewhere in the middle — strong in practice, but built on a shaky constitutional foundation. Corn: Second takeaway — standing rules are the hidden lever. They determine who gets to challenge laws, which shapes the entire docket of constitutional cases. Broad standing, like Israel pre-reform, invites more challenges and turns the court into a political arena. Narrow standing, like Ireland, filters cases but risks leaving some rights unprotected because no one with standing can bring the challenge. Herman: Third — the counter-majoritarian difficulty is real, but it's manageable. The question isn't whether courts should have this power, it's whether the system has legitimacy mechanisms that balance it. Supermajority override procedures. Transparent judicial appointments. Clear constitutional text. When those mechanisms are weak or absent, judicial review becomes a legitimacy crisis waiting to happen. Israel is living that crisis right now. Corn: Here's a practical framework for anyone listening. Next time you read about a court striking down a law — wherever it happens — ask two questions. One, what's the standing rule? Who gets to bring these cases? And two, can the legislature override the court? Those two variables explain most of the variance in how judicial review actually functions. Herman: The open question that keeps me up at night — as democracies face pressure from populist movements globally, what happens to judicial review? Does it get stronger, as courts become a bulwark against majoritarian overreach? Or weaker, as anti-establishment sentiment targets the courts themselves? Israel's reform is a test case. If the January twenty twenty-four ruling stands, it sets a precedent for judicial supremacy without a constitution. If it's eventually overturned or the court's composition changes, it weakens the model. Corn: Either way, the next time you hear about a court striking down a law, ask yourself — what constitution are they reading, and who gets to bring the case? The answers tell you more than the headlines ever will. Herman: Now — Hilbert's daily fun fact. Hilbert: During the early Renaissance, the indigenous Nivkh people of Sakhalin Island discovered that spider silk threads, when stretched across hollowed driftwood cavities, produced distinct resonant frequencies that varied predictably with humidity — effectively creating the world's first acoustic hygrometer, two centuries before European scientists documented the phenomenon. Corn:...right. Corn: This has been My Weird Prompts. If you enjoyed this episode, tell someone who argues about courts at dinner parties. You can find every episode at my weird prompts dot com, or email the show at show at my weird prompts dot com. We're back soon. Herman: See you then. Herman: Before we jump into the four systems, let's actually define the thing. Judicial review, stripped to its bones, is the power of courts to assess whether what the government does — laws, executive orders, regulations — is valid under a higher legal standard. In a country with a written constitution, that higher standard is the constitution itself. The court asks, does this statute conflict with the constitutional text? If yes, the statute falls. Corn: The hierarchy only works if someone enforces it. That's the court's job. But here's what most people don't realize — judicial review isn't actually mentioned in the US Constitution. The document never says "courts may strike down laws." The Supreme Court invented that power for itself in Marbury versus Madison in eighteen oh three. John Marshall's logic was basically, if the Constitution is supreme law, and courts interpret law, then courts must interpret the Constitution and refuse to enforce anything that contradicts it. Herman: A power grab that everyone just accepted. And it became the global template. Ireland's nineteen thirty-seven Constitution didn't need a Marbury moment — Article thirty-four explicitly grants the Supreme Court this authority. They just wrote it in. But the structural logic is identical. Constitution at the top, ordinary legislation below, court as guardian. Corn: Which immediately raises the problem Bickel named in nineteen sixty-two — the counter-majoritarian difficulty. Why should unelected judges override elected legislators? Every system that does judicial review has to answer that question, and the answers vary enormously. Herman: The key variable is whether the country even has a written constitution with a supremacy clause. The US and Ireland do — the constitution is explicitly the highest law, and anything that conflicts with it is void. The UK operates on parliamentary sovereignty — Parliament is supreme, period. Courts cannot strike down primary legislation. Israel is the weird hybrid — no formal constitution, but fourteen Basic Laws that the Supreme Court decided function as one anyway. Corn: Before you even get to the substance of a case, the architecture of the system determines what's possible. A British judge literally cannot do what an American judge does every term. Same job title, completely different toolbox. Herman: That's where Daniel's point about locus standi comes in. Standing rules are the gatekeeper. In Ireland, Cahill versus Sutton in nineteen eighty established the personal interest test — you have to show you're personally affected by the law you're challenging. Not just that you disagree with it, not that it's bad policy. You need skin in the game. Corn: The US version from Lujan versus Defenders of Wildlife in nineteen ninety-two is even more structured — injury in fact, causation, redressability. You need a concrete harm, the defendant caused it, and the court can fix it. It sounds technical, but it's actually a pretty high bar. Herman: The UK takes a different approach entirely. Standing rules there are broader — courts have discretion to hear cases from public interest groups, not just directly affected individuals. The logic is that some rights are worth protecting even if no single person has a unique injury. Environmental cases, human rights cases — the UK system wants those heard. Corn: Which is the exact opposite instinct from Ireland's personal interest filter. One system says "only the harmed get in." The other says "some harms are collective, and someone should be able to raise them." Neither is obviously wrong, but they produce completely different dockets. Corn: That difference played out dramatically in the Irish abortion cases. Take Society for the Protection of Unborn Children versus Grogan in nineteen eighty-nine. SPUC was a pro-life organization suing student unions for distributing information about UK abortion services. The standing question was — does an advocacy group have a personal interest in stopping speech it disagrees with? The Supreme Court said yes, because SPUC's mission was to protect unborn life, and that gave them sufficient interest. Herman: Which is a fascinating ruling, because it effectively expanded standing for ideologically motivated plaintiffs while Ireland's test was supposed to be about personal harm. The court reasoned that if nobody with a direct personal injury could or would bring the case, an organization dedicated to the issue could stand in. It's a pragmatic workaround, but it muddies the whole "personal interest" principle. Corn: The consequences were enormous. That standing decision meant SPUC could get an injunction that effectively suppressed abortion information for years. One procedural ruling, before anyone even argued the merits, shaped Irish reproductive rights for a generation. Herman: Compare that to the US approach. In Lujan, the environmental groups couldn't show they'd personally visited the specific sites where endangered species were threatened. They had members who said "I intend to go someday." The court said that's not injury in fact — it's too speculative. So the case died on standing, and the regulation stood. The US filter is stricter in that sense. You can't just care deeply about an issue. You need to show the law actually landed on you. Corn: Here's the counterintuitive part. The US has stricter standing, yet its Supreme Court still hears some of the most politically explosive cases imaginable. NFIB versus Sebelius in twenty twelve — the challenge to the Affordable Care Act's individual mandate. Standing wasn't even contested because the plaintiffs could point to a specific thing the law made them do — buy insurance or pay a penalty. Concrete, particularized, done. Herman: What the court did with that case shows how judicial review can reshape policy through interpretive choices, not just strike-downs. The commerce clause argument failed — the court said Congress can't regulate inactivity. But John Roberts found the mandate was functionally a tax, and Congress can tax. Same law, same outcome for most people, but the constitutional reasoning completely redefined the limits of federal power going forward. Corn: Five to four. That's the counter-majoritarian difficulty in its purest form. Bickel wasn't asking a hypothetical. He was describing a reality where individual judges, accountable to no electorate, make decisions that affect hundreds of millions of people. And the US answer to "why is this okay" has always been — the Constitution is a deeper form of democratic consent than any single election. It's the people's long-term commitments overriding their short-term passions. Herman: Ireland's answer is structurally similar but with a cleaner chain of legitimacy. The nineteen thirty-seven Constitution was ratified by popular referendum. When the Irish Supreme Court strikes down a law under Article thirty-four, it can say — we're enforcing what you, the people, actually voted for. That's a stronger democratic anchor than Marbury versus Madison's self-appointed guardianship. Corn: Though it raises the question — the people who ratified it in nineteen thirty-seven are mostly dead. Their grandchildren didn't vote for it. How long does a referendum's democratic legitimacy last? Herman: That's the tension that never fully resolves. Every system picks its own compromise between judicial independence and democratic accountability. The US picks life tenure and a nearly impossible amendment process. Ireland picks a somewhat easier referendum mechanism but still strong judicial review. And then there's Israel and the UK, which we're about to get to, where the compromises look completely different. Herman: That brings us to the countries where the compromise isn't a compromise so much as a tightrope walk without a net. Israel and the UK both lack a written constitution, but they've arrived at completely different solutions. The UK solution is almost elegant in its honesty — Parliament is supreme, full stop. Courts cannot strike down primary legislation. Corn: Which sounds like judicial review just doesn't exist there. But that's not quite right. Herman: No, because the Human Rights Act of nineteen ninety-eight created a workaround. Courts can issue something called a declaration of incompatibility. If a law violates rights protected under the European Convention on Human Rights, the court says so publicly. But — and this is the crucial part — the declaration doesn't invalidate the law. It's the judicial equivalent of a very public cough. Corn: The judge clears their throat and glances meaningfully at Parliament. Herman: And the Belmarsh case in two thousand four is the textbook example. After nine-eleven, the UK government passed legislation allowing indefinite detention of foreign terror suspects without trial. The Law Lords — that was the UK's top court at the time — declared it incompatible with the Convention. But the detainees stayed in prison. The law didn't change immediately. Corn: What actually happened? Herman: Political pressure built. The declaration was embarrassing. Parliament eventually replaced the law with control orders — still controversial, but at least they applied to citizens and non-citizens alike. The system worked, but slowly. Rights were protected eventually, not immediately. That's the tradeoff of weak-form review. Corn: Israel took the opposite fork in the road. Fourteen Basic Laws, no formal constitution, but the Supreme Court decided in the nineteen nineties that these Basic Laws function as one anyway. The nineteen ninety-two Basic Law on Human Dignity and Liberty was the trigger. Aharon Barak, the chief justice at the time, called it a constitutional revolution. Herman: It was revolutionary. The court started striking down ordinary Knesset legislation that violated these Basic Laws. But here's the legitimacy problem — Basic Laws are passed by ordinary Knesset majorities. There's no supermajority requirement, no special ratification process. A Basic Law is just a regular law with a fancy title, until the court says otherwise. Corn: Which means the Israeli court isn't enforcing something the people ratified. It's enforcing something the court itself elevated to constitutional status. The US court can point to the Constitution and say "we're just applying what the founders wrote." The Israeli court is pointing to laws passed by the same Knesset it's overruling and saying "these ones are special because we say so. Herman: That's exactly why the twenty twenty-three reform crisis was so explosive. The government proposed amending the Basic Law on the Judiciary to eliminate the reasonableness standard — a doctrine the court had used to strike down government decisions it found unreasonable. The Knesset passed it in July twenty twenty-three. The court struck it down in January twenty twenty-four, twelve to three. Corn: The first time the court ever struck down a Basic Law amendment. A court striking down a law about limiting the court's own power, using authority the law was trying to limit. Herman: Twelve to three is a strong majority, but the dissenters made a point that's going to echo for years. They argued that striking down a Basic Law amendment is fundamentally different from striking down ordinary legislation. Basic Laws are the closest thing Israel has to a constitution. If the court can strike down amendments to the quasi-constitution, what external check exists on the court? Corn: That's the answer. In a system with no formal constitution, no supermajority amendment process, and a court that claims the power to review everything including its own governing framework — the court is the check on itself. Which is either a brilliant safeguard against majoritarian overreach or a complete abandonment of democratic accountability, depending entirely on whether you trust the judges. Herman: Israel's standing rules made this dynamic even more intense. Traditionally, standing was extraordinarily broad. Any citizen could petition the High Court of Justice against a government action affecting the public interest. You didn't need a personal injury. You just needed to be a concerned citizen. The court functioned as a kind of national ombudsman. Corn: Which is the polar opposite of Ireland's personal interest test. In Dublin, you need to show the law specifically landed on you. In Jerusalem, you could challenge a law because you read about it in the newspaper and didn't like it. Herman: That broad standing is exactly what the reform sought to narrow. The proposal was to require petitioners to show they were directly affected — moving Israel toward something closer to the Irish or American model. The argument for it was straightforward — the court was drowning in petitions, and broad standing turned every political dispute into a judicial one. Corn: The argument against it was equally straightforward — narrowing standing means some rights violations never get challenged because the people most affected can't bring a case. Exactly the same tradeoff Ireland faces, but with much higher stakes because Israel doesn't have a constitution to fall back on. Herman: That reveals the deeper knock-on effect. In systems with strong judicial review, courts become political battlegrounds. Look at US Supreme Court appointments — they're ideological cage matches because everyone knows the court can reshape policy for a generation. Israel's reform crisis is the same phenomenon, just compressed into a shorter timeframe. When courts have real power, controlling who sits on them becomes an existential political project. Corn: Whereas in the UK, judicial appointments are comparatively boring. Nobody's camping out in front of Parliament over who gets named to the Supreme Court. Because the court can't actually strike down laws. It can issue declarations, apply pressure, shape the political conversation — but Parliament always gets the final word. The political energy stays in the political arena. Herman: Which sounds healthier, until you remember Belmarsh. Foreign terror suspects sat in prison under a law the UK's highest court had declared incompatible with human rights. Parliament didn't act immediately because the political pressure wasn't sufficient. In a strong-review system, those detainees would have walked free the day the ruling came down. Corn: The tradeoff is speed versus democratic legitimacy. Strong review protects rights immediately but concentrates enormous power in unelected judges. Weak review keeps power with elected legislators but protects rights slowly, incompletely, or sometimes not at all. Herman: Israel's hybrid model tries to split the difference — strong review without the constitutional anchor that makes it legitimate. That's why the reform crisis isn't just a policy dispute. It's a legitimacy crisis. The court is exercising American-style power on a British-style constitutional foundation, and the foundation is cracking. Herman: Let's pull these threads together, because Daniel's question was really about how to think about judicial review across systems, not just what the rules are. And I think there are three insights that actually help. Corn: First one's almost too obvious to say, but it gets missed constantly — judicial review isn't binary. It's a spectrum. Strong-form on one end, where courts strike down laws and legislatures have limited recourse. That's the US and Ireland. Weak-form on the other, where courts flag problems but can't force fixes. That's the UK. And Israel sits in the middle, doing strong-form review on a weak-form constitutional foundation, which is why it keeps catching fire. Herman: Each point on that spectrum has a different answer to the legitimacy question. The US and Ireland say the constitution is a higher form of democratic consent. The UK says Parliament is the only legitimate sovereign, so courts advise but don't command. Israel says the Basic Laws are a constitution because the court says so — which works until it doesn't. Corn: Second insight, and this is the one Daniel flagged from his Cork days — standing rules are everything. They're the valve that controls how much judicial review actually happens. Crank it open like pre-reform Israel, and the court becomes a parallel legislature where every political dispute gets re-litigated. Close it tight like Ireland, and you filter out frivolous cases but risk leaving real harms unaddressed because no one with standing can get through the door. Herman: The third one ties it together. The counter-majoritarian difficulty Bickel named isn't some unsolvable paradox. It's a design problem. The question is whether the system has legitimacy mechanisms that balance court power — supermajority overrides, transparent appointments, clear constitutional text. When those mechanisms are strong, judicial review feels like governance. When they're weak, it feels like a coup in robes. Corn: Here's a practical framework. Next time you read about a court striking down a law anywhere — read past the headline and ask two questions. One, what's the standing rule? Who gets to bring these cases? Two, can the legislature override the court? Those two variables explain more about how judicial review actually functions than any amount of constitutional theory. Herman: The open question worth watching — as populist pressure builds across democracies, does judicial review get stronger because courts become a bulwark, or weaker because anti-establishment sentiment targets the judiciary? Israel's reform is the live experiment. If the January twenty twenty-four ruling stands, you've got judicial supremacy without a constitution. If it's eventually unwound, the hybrid model looks a lot less stable than its defenders claim. Corn: Either way, the framework travels. What constitution are they reading, and who gets to bring the case? Answer those two, and you'll understand more than most of the people writing op-eds about it. Herman: Where does that leave us? The framework is useful, but the question that actually matters going forward is what happens to judicial review under sustained political pressure. Populist movements across democracies have made courts a target. The logic is straightforward — if you're running on "the people versus the elites," unelected judges are the ultimate elite. Corn: The response from courts can go two ways. They can dig in, assert their role as a bulwark, strike down more aggressively. Or they can retreat, narrow their standing rules, defer to legislatures, try to stay out of the line of fire. Both strategies are being tested right now. Herman: Israel is the most extreme version of the test. The January twenty twenty-four ruling was the court digging in — twelve to three, striking down a Basic Law amendment, asserting supremacy without a constitution. If that ruling holds, it establishes a precedent that the Israeli Supreme Court has final say over the Basic Laws themselves. Judicial supremacy, no constitutional anchor required. Corn: If it doesn't hold — if the Knesset passes new legislation, or the court's composition shifts, or the political winds reverse — then the model cracks. You can't un-strike-down a strike-down without a constitutional crisis, and Israel doesn't have a constitution to resolve it. Herman: That's the live experiment. Every other democracy with an independent judiciary is watching. Corn: The next time you hear about a court striking down a law, ask yourself — what constitution are they reading, and who gets to bring the case? Answer those two, and you'll understand more than most of the people writing op-eds about it. Herman: Now — Hilbert's daily fun fact. Hilbert: During the early Renaissance, the indigenous Nivkh people of Sakhalin Island discovered that spider silk threads, when stretched across hollowed driftwood cavities, produced distinct resonant frequencies that varied predictably with humidity — effectively creating the world's first acoustic hygrometer, two centuries before European scientists documented the phenomenon. Corn:...right. Corn: This has been My Weird Prompts. If you enjoyed this episode, tell someone who argues about courts at dinner parties. You can find every episode at my weird prompts dot com, or email the show at show at my weird prompts dot com. We're back soon. Herman: See you then.