discussant on the other papers
What happens when a president is deemed to be so politically unpopular as to endanger the country? In the United States, the conventional understanding is, in a word, nothing. The result is that the constitutional system, as conventionally understood, dooms us to keep an unpopular president until the full term is fulfilled. It does not have to be this way. Neither the historical understanding of impeachment nor the text determines that we need to interpret the constitution in the way that we have. And comparative experience shows us that a well-functioning democratic order can be consistent with other ways of doing things. Lower barriers to removal need not bring political instability. Other countries approach the problem of runaway or unpopular chief executives, including elected presidents, in very different ways. This paper explores the comparative experience of removing presidents around the world.
This paper focuses on a doctrine that the Israeli Supreme Court has
developed since the early 1990s under which the Court removes
officeholders from their position by ordinary judicial review
proceedings. Although this doctrine is not founded on any formal
constitutional settings, nonetheless it has had a significant influence
on the relationships between the judiciary and the political branches,
as it was the basis for the removal of several major political figures
— including ministers and top bureaucrats — from office.
This practice of ‘impeachment’ by judicial review is unique
to Israel, and has hardly been studied in the comparative
literature. It is, however, extremely common and influential in Israeli
constitutional and political life. In this Article, I describe
the development of this practice by the Israeli Supreme Court and
its influence on the relationships between the courts and politics in
Israel. I also provide a critical evaluation of the doctrine.
In 2016, Brazil experienced the second presidential impeachment since the transition to democracy in 1985. It followed, in many respects, the pattern Pérez-Linãn had previously described as typical in Latin America for such an outcome: weak military, strong media coverage, popular protests, and loss of support in Congress. Yet Pérez-Linãn does not go much further in connecting impeachments to particular behaviors of the judicial system. In President Dilma Rousseff’s impeachment, the Supreme Court clearly transformed itself from a simple arbiter of the game into one of the central players of the game. It was, though, strongly engulfed by the political crisis and saw its authority increasingly questioned, especially during the 2018 national elections. Drawing from the Brazilian case, this paper explores the dilemmas of activism and self-restraint of Supreme Courts during such traumatic moments. It also questions how such behaviors can shape the Court from that moment on.