Acceso usuarios
Iddo Porat
How do courts function in an environment of political polarization? This Article aims to gain insight into this question through a comparative case study of three countries—India, Brazil, and Israel—examining the challenges that political polarization posed to their supreme courts and the way each of them chose to respond to them. Among the findings of the comparative study are striking similarities in the trajectories of political polarization, and of court reactions, in the three countries. One important difference, however, comes out of the analysis—the difference between a judicial path of wide versus narrow support. India’s Supreme Court chose to retain its popularity during polarization relying on what I call “wide public support.” It did so by being careful not to vex the Bharatiya Janata Party (BJP, India People’s Party) government on the most sensitive issue for its voters—its campaigns against Muslims and Muslims’ rights. The Israeli Supreme Court, on the other hand, chose a path that I call “narrow public support” by promoting a liberal conception of human rights across the board, including in hot button issues, such as security, Arab and Palestinian rights, law and religion, and immigration policy. It has thus lost the support of the right-wing, conservative, and religious parts of the population while solidifying the support of its liberal base. Brazil’s Supreme Court had also lost support among hardline right-wing Bolsonaro supporters and became a major point of contention in the fight between Left and Right, but this is a relatively recent development, and it remains to be seen whether the Court would be able to regain general support after the age of Bolsonaro.
