Dialogic judicial review is a dialectic interaction between supreme courts and legislatures regarding the constitutionality of legislation, in which each institution preserves its constitutional authority, and yet performs it while considering the other institution’s stance and its ability to respond. This interaction is based on reciprocity and upon the contribution of both institutions to the constitutional design and interpretation of legislation. This dialogic interaction has much value at the institutional and instrumental level. Unfortunately, constitutional dialogue sometimes has a negative influence on petitioners and similar groups, as their rights are being trampled under a dialogic veil. This article argues that constitutional dialogue can (and sometimes must) be restricted to avoid hindering human rights during the constitutional institutional interaction. It sketches a doctrine designed to prevent impairing human rights in the name of dialogic interaction, through three arguments: (i) the constitutional dialogue must be restricted, since reality shows that courts in many cases prefer legitimacy considerations over protecting human rights; (ii) in the case of under-represented groups, there is no reason to trust legislatures to take human rights into consideration while formulating a legislative response; and (iii) courts can restrict the dialogic interaction by declaring the constitutional purpose to be unconstitutional or by using judicial decisiveness which strives for full and coercive judicial constitutional review.

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This article reveals an evolving judicial doctrine, in which the Supreme Court of Israel postpones, removes, dismisses, or even dismisses in limine petitions, due to the mere existence of legislative initiative with respect to the petition’s issue. The article analyzes the way the Court uses the doctrine, and offers a normative analysis of this phenomenon. The main argument is that the judicial use of the doctrine leads to deprivation of the petitioners’ rights, gives (too) much power to the state legal counsels, leans on uncertain and unforeseeable situations, and damages the fundamental principle of the rule of law. On the other hand, the judicial use of the doctrine promotes and enhances constitutional dialogue, as well as preserving judicial resources (and judicial legitimacy in particular) and the professionality of the legislation. Henceforth, the article also introduces an effort to balance between the doctrine different consequences, by presenting a set of criteria for a more reasoned, coherent, and analytical use of that doctrine.

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Constitutional dialogue theory has some great qualities. It is balanced, democratic, and deliberative. It has a special legitimacy-enhancing role due to the place that it gives to legislatures and to the political process. Even its name has a positive aspect. However, this important theory has a major flaw: it does not protect human rights well. This theory puts most of the weight on institutional interaction, and not enough weight on the petitioners’ rights. This Article wishes to strengthen this criticism through a discussion of the strong connection between constitutional dialogue and constitutional remedies. The court choice of remedy can facilitate the legislature’s ability to enact a legislative response as a part of the ongoing dialogue between courts and legislatures. The constitutional remedies are an invitation, directed to the political branches, that can leave the discretion regarding desired policy in the political field, while minimizing the judicial intervention in the legislative fora. An invitation to take (or restore) constitutional responsibility and sensitivity. However, this invitation sees only political institutions, instead of the ones who need the remedy the most: the petitioners. Soft and legitimacy-enhancing designing of constitutional remedies cast the price on the petitioners’ shoulders, who do not win full remedying in the name of constructive inter-institutional dynamics. Thus, using the Israeli Supreme Court’s use of constitutional remedies as a test case, the main argument is a claim in favor of judicial use of strong and status-quo changing remedies that protect the petitioners’ rights. Counterintuitive as it may seem, the dialogue theory—which is built upon the political branches ability to respond—enables and legitimizes the choice to use strong remedies. The latter is the outcome of the responsive nature of the theory and the temporal nature of the constitutional remedies.