Originalists Should Not Make Common Cause with Israel’s Radical Judicial Reformers

I sraelis went to the polls today for the fifth time in four years. They faced a stark choice. On one side, the change coalition, led by incumbent prime minister Yair Lapid, represented a more liberal, secular conception of Zionism and promises to end Benjamin Netanyahu–era divisiveness once and for all. On the other, the nationalist and ultra-Orthodox parties, with Likud and former prime minister Netanyahu at their helm, aimed to ground state policy in halakha, Jewish law, and a non-conciliatory approach to matters of national security. As of this writing, polls just closed; early (albeit unreliable) exit polling gives the edge to Netanyahu’s coalition.

One of the issues that got a lot of attention in this race, especially in the foreign press, was the mainstreaming of far-right Kahanist leader Itamar Ben-Gvir. Ben-Gvir, whose Kach Party has been banned in Israel and designated a terrorist organization by both Israel and (until recently) the U.S., considers himself a disciple of Meir Kahane, the ultranationalist rabbi who was influenced by Stokely Carmichael, founder of the Black Panthers. Much like Kahane (who was assassinated in New York in 1990), Ben-Gvir has been found guilty of several terrorism-related offenses.

Netanyahu has helped normalize Ben-Gvir in an attempt to bolster his rightward flank as part of his ceaseless quest to form a stable government. Now, there’s a risk that someone whose political inspiration is a terrorist leader could run the ministry of public security, which is responsible for overseeing the maintenance of peace on the Temple Mount, a major geopolitical flashpoint. Regardless of one’s views on the Palestinian issue, conservative supporters of Israel must call out Netanyahu’s recklessly cynical ploy to recapture the premiership.

However, the prospective reimagining of Israel’s judiciary presents an even more significant threat. Unfortunately, some stateside originalists have bought into the notion that a significant nexus exists between their jurisprudential philosophy and this project. While they certainly share a stated commitment to individual liberty and limited government, legal conservatives in the U.S. ought to be mindful of the significant daylight that exists between themselves and their Israeli counterparts.

In recent years, Israeli High Court rulings regarding the interplay of synagogue and state and land-ownership status in the West Bank have generated controversy and deepened political tensions. The Right sees the court as impermissibly engaged in judicial activism, while the Left, frequently locked out of power for much of the last several decades, has welcomed the court’s interventions as a check on rightist legislative overreach.

Earlier this month, Religious Zionist Party leader Bezalel Smotrich announced that he would seek structural changes to the Israeli judiciary as a precondition for his entering any government. For starters, Smotrich would like to give the Israeli parliament a greater say in how judges are selected by ensuring that the government appoints most of the seats on Israel’s judicial-selection committee. This proposal would assuredly give the government nearly complete control over the judicial-selection process, thereby politicizing it in a manner roughly analogous to how the Senate Judiciary Committee functions. Irrespective of the implications of these alterations, one can see how an American originalist would find such an arrangement not just recognizable but justifiable. But the plan gets far worse from there. 

Smotrich and his allies also seek to abolish the crime of “fraud and breach of trust,” one of the charges Netanyahu is facing in his ongoing legal odyssey, and to grant immunity to prime ministers, ministers, and members of Knesset “for any crime they might commit in relation to their position while in office.” Believe it or not, this blatant attempt to place Netanyahu above the law and shield him from legal scrutiny is just the tip of the iceberg. There’s much more to this plan with which intellectually honest originalists ought to take issue.

The most striking aspect of this proposal is that its proponents want to virtually do away with judicial review. They argue that, because Israel has no written constitution, and its basic laws were given semi-constitutional status only relatively recently, the courts have no legitimate authority to check the “general will” as instantiated by the Knesset.

There’s nothing conservative about this initiative. These judicial revolutionaries seem to think that the fundamental flaw of Israeli governance, its lack of a written constitution, provides a license for hyper-majoritarianism.

The originalist’s understanding of the role of the judiciary in a democracy is indeed limited (“that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be”). However, this advocacy for judicial restraint is coupled with a healthy respect for enumerated rights and separation of powers. In the Israeli context, this would look like deference for the rights protected by the basic laws and the independence of the judiciary.

Putting aside whether or not Marbury v. Madison, the origin of judicial review in the American context, was a genuinely originalist decision, judicial review has become an indispensable tool in maintaining a free society. The originalist knows that judicial review is the cornerstone of courts’ ability to check popular passions. The judiciary must maintain its autonomy to safeguard against majoritarian attempts to ride roughshod over the fundamental rights of individuals and minority factions. Without this essential guardrail, there will be no brakes on the descent into mobocracy and the tyranny of the majority. And much like common-good constitutionalists, the Israeli Right’s judicial reformers fail to consider how empowering the legislature by neutering the judiciary could harm their interests when the other side is back in power.

Perhaps before endorsing these judicial innovators, originalists ought to heed the advice of conservative justice minister Gideon Sa’ar. An advocate of more-limited judicial reform himself, Sa’ar understands that “the opposition aren’t conservatives, they are anarchists and revolutionaries who want to wipe out the existing system and replace it with something new.” As some of the proponents of this proposal may well form the next government, students of Blackstone and Burke should be wary of their efforts.