The idea that even questioning the degree of power wielded by the Israeli supreme court amounts to exhibiting dictatorial tendencies is deeply unserious.
The idea that even questioning the degree of power wielded by the Israeli supreme court amounts to exhibiting dictatorial tendencies is deeply unserious.
T his week has been eventful for Israel, as it grapples with a possible (and long-overdue) overhaul of its judiciary. A few day ago, as a result of widespread protests, Prime Minister Benjamin “Bibi” Netanyahu announced that there would be a pause on attempts by his coalition to enact judicial reforms. Meanwhile, on Tuesday, President Biden urged Bibi to “walk away” from his current efforts at reform, declaring that he was “very concerned” about the health of Israeli democracy and asserting that Israel “cannot continue down this road.”
Bibi responded to Biden thus:
My administration is committed to strengthening democracy by restoring the proper balance between the three branches of government, which we are striving to achieve via a broad consensus. Israel is a sovereign country which makes its decisions by the will of its people and not based on pressures from abroad, including from the best of friends.
In the past two months, critics of Israel’s proposed judicial reform across the globe have echoed Biden’s sentiments, decrying the proposed legislation as a death knell for Israeli democracy, certain to usher in a quasi-dictatorship. A group of U.S. House members issued a letter to President Herzog, Netanyahu, and Opposition Leader Yair Lapid, declaring that “these changes could fundamentally alter the democratic character of the State of Israel.” German chancellor Olaf Scholz expressed “great concern” over the proposed reforms, informing Bibi during a joint press conference that “the independence of the judiciary is a high democratic good.” Even Canadian foreign minister Mélanie Joly expressed dismay to her Israeli counterpart over the proposed overhaul.
This level of international commentary is quite unusual, even for a nation (such as Israel) accustomed to outsized global attention. Especially since the proposed reforms fall within perfectly reasonable parameters of debate on questions of domestic policy. Judicial activism is an ongoing controversy in the U.S, for example.
The international community has raced to scapegoat the proposed judicial reforms and Bibi, their primary proponent, as the source of unrest. The reality is that Israel’s emerging chaos is a product of individuals spreading mistruths about the nature of the proposed judicial reforms. At best, such mistruths stem from a genuine ignorance of Israel’s political system. At worst, they are part of a larger campaign to destabilize Bibi’s government and obstruct the right-wing coalition’s ability to govern. Whether opponents are ignorant or aware of what they’re doing, the boldest claim they make is that the proposed reforms pose a threat to democracy. In fact, the opposite is true.
Netanyahu has framed the proposed reforms as an attempt to rectify Israel’s democracy deficit. Some of the more contentious reforms include altering the composition of the Judicial Appointments Committee to allow the Knesset (Israel’s legislature) greater say in selecting judges; requiring a supermajority on the court to overturn laws; allowing a simple Knesset majority to override rulings by the court; and prohibiting the court from overturning any Basic Laws (laws that are deemed to be “constitutional” in nature). Yes, the Israeli supreme court currently claims the power to strike down the types of laws it claims carry constitutional status, though it has not yet exercised this power.
Opponents believe that the proposed reforms will leave the court at the mercy of the legislature and leave minority rights at the mercy of the majority. These reforms are not above criticism, but labeling them “anti-democratic” is patently absurd, given that they would transfer power away from unelected judges to popularly elected members of the Knesset. That is, they would make Israel’s system more democratic — the judiciary would reflect the will of the people to a far greater degree than it does now. It is fine to disagree with that outcome and to believe that the selection of judges should continue to entail a degree of self-selection, as well as express the final word on countless aspects of Israeli law and policy. But it is dishonest to portray this preference as pro-democratic.
Americans are no strangers to cries that democracy is dying. And thus Americans are well aware that such cries are typically disingenuous. In this case, Israel’s supreme court is now the most powerful branch within Israel’s political system and enjoys this power entirely unchecked by peer political organs or by the Israeli electorate. Beginning in the 1980s, the supreme court began systematically removing roadblocks that otherwise would have prevented its being able to hear certain cases. It eliminated all restrictions on standing, which traditionally had required the party bringing suit to have suffered actual injury, and removed all restrictions on justiciability, which formerly had limited the court from interfering in cases involving certain sensitive political questions. Examples of now-“justiciable” issues have included the placement of Israel’s security fence, the determination of who is eligible for appointment to a cabinet position, and the setting of refugee quotas.
Keep in mind that Israel lacks a written constitution. Absent a founding document against which the legality of new legislation can be judged, the concept of judicial review has evolved in a much more ad hoc manner than it has in the United States. As an example, the Israeli court invented a doctrine under which government action it regards as unreasonable can be deemed illegal, even absent a concrete violation of Israeli law. Since then, countless government decisions, from the appointment of ministers to the allocation of funds promoting school safety to IDF interrogation methods, have been subjected to the court’s “reasonability” analysis. No government action, regardless of its consistency with the letter of the law or the purely discretionary determinations it may involve, is beyond the court’s second-guessing.
Judicial intervention peaked in the 1990s when then–supreme court president Aharon Barak announced a “constitutional revolution” following the passage of two new pieces of legislation described as Basic Laws. Barak asserted that these laws effectively formed a constitution that would enable the court to overturn any legislation that judges determined violated them. The Knesset never intended this (the Basic Laws in question were passed with fewer than half of the Knesset’s members present). But Barak interpreted one Basic Law — “Human Dignity and Liberty” — as the Court’s new mandate, declaring that it should have broad application, encompassing “all those human rights that have a close substantive connection to human dignity and liberty according to prevailing concepts among the enlightened public in Israel.” Upholding “human dignity” has come to mean, to mention one example, barring the government from withholding some welfare payments to an applicant if the applicant owns a car.
Ironically, when the Knesset passed Basic Law: Human Dignity and Liberty, most of the media didn’t even report on it.
To make matters worse, the court de facto chooses its successors via the Judicial Appointments Committee, whose composition and secret proceedings ensure that the will of the justices ultimately prevails (though a 2007 reform by then–Likud justice minister, Gideon Saar, modified self-selection by requiring a majority of seven of nine committee members to agree on judge selection). The committee’s makeup consists of the justice minister and another minister chosen by the cabinet; two Knesset members selected by the Knesset, typically one member of the governing coalition and one from the opposition; two lawyers selected by the Israel Bar Association; and three active supreme-court justices selected by the supreme-court president. This arrangement favors the preferences of the supreme court to such a degree that the voice of the Knesset is generally silenced, allowing the reigning ideology of the court to dominate into perpetuity.
The proposed Israeli judicial reforms may be imperfect, but if any one of the powers described above were assigned to the U.S. Supreme Court, there would be uproar. Imagine our 6–3 Supreme Court’s being empowered to choose its successors ad infinitum and the resulting absence of any ideological diversity on the Court. Or imagine the Supreme Court’s intervening to determine that President Biden cannot appoint his preferred nominee as the Secretary of Transportation because they are “good friends” (yes, this really happened in Israel).
The idea that even questioning the degree of power wielded by the Israeli supreme court amounts to exhibiting dictatorial tendencies is deeply unserious. As Alan Dershowitz stated earlier this month in a debate with Eugene Kontorovich, “if all of these reforms were enacted — and I oppose most, if not all, of them — it would turn Israel, God forbid, into Canada or New Zealand or Australia or many European countries.” Suffice it to say not one country listed is currently described as experiencing the “death of democracy” or a slow slide into dictatorship. And it is shameful that many are suggesting that it is so in the context of Israel.
Editor’s Note: This article has been edited to clarify the nature of judicial selection on Israel’s supreme court.