The aim in this article is to explore the complicated connections between standards and letting go and between rules and control. Both constitute a central tenet of Justice Roberts’ Graham concurrence, as well as a central tenet of the minimalist approach which he implicitly adopts. The tension within Roberts’ position is not conclusive. It may depend on the actual way one uses standards. If Roberts consistently uses standards de facto in a deferential way, and signals that he will not intervene, he may be consistent with the approach. But the tension exists. Standards and minimalism do not always go hand-in-hand. Finally, the article questions the efficacy of minimalism as a workable judicial philosophy. Roberts is, after all, the first Justice who adopted minimalism whole-heartedly. The difficulties with the application of minimalism in Graham and its inherent tensions revealed through this case raise some doubts as to the possibility that minimalism can move effectively from theory to actual judicial practice.

In Beit Sourik the Israeli High Court of Justice struck down most of the planned route for the security fence to be established north of Jerusalem. The Court ruled that the military commander did not properly balance the contribution of this route to the security of the State and the extent of the injury to the rights of the Palestinian inhabitants of the area. It was therefore ruled that this route did not comply with the requirement of proportionality in its strict sense. At the same time, the Court rejected the claim of the petitioners that the motive underlying the determination of the fence's route was a desire to establish a border (a political consideration) and not a security consideration.

This article criticizes the Court's line of reasoning. I argue that the Court erred in striking down the planned route of the security fence on the ground of not fulfilling the requirement of proportionality in the strict sense. The vague nature of this requirement may cause judicial decisions to assume a subjective character, thus violating the democratic principle according to which fundamental decisions should be determined by the people's elected representatives. Given the suspicious circumstances that had led to the determination of the fence's route, the Court should have applied a different kind of reasoning. Instead of balancing the State's security issues and the Palestinians rights, the Court should have carefully scrutinized whether the security purpose was authentic. Judicial review, based on these premises, increases governmental transparency and thus better complies with democratic principles.