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How Israel’s Supreme Court can strengthen democracy

Without overruling the Knesset

Chief Justice of Israel's Supreme Court Esther Hayut at the hearing of the government's "reasonableness" law, at the Supreme Court in Jerusalem, Sept. 12, 2023. Photo by Yonatan Sindel/Flash90.
Chief Justice of Israel's Supreme Court Esther Hayut at the hearing of the government's "reasonableness" law, at the Supreme Court in Jerusalem, Sept. 12, 2023. Photo by Yonatan Sindel/Flash90.
Robert Silverman
Robert Silverman
A former U.S. diplomat and president of the American Foreign Service Association, Robert Silverman is a lecturer at Shalem College, senior fellow at the Jerusalem Institute for Strategy and Security and president of the Inter Jewish Muslim Alliance.

On Tuesday, Israel’s Supreme Court convened amid an atmosphere of heightened political tension to hear petitions asking it to strike down a recently-passed Knesset law. No ruling is expected imminently, but political compromise proposals by Israeli Prime Minister Benjamin Netanyahu and others indicate a growing concern with leaving the matter in the hands of the court. 

Part of the new Israeli government’s judicial reform package (and the only element enacted thus far), this law bars judges from using the “reasonableness standard,” a defined principle in Israeli jurisprudence with established criteria, and one previously used to overrule as “unreasonable” both legislation and certain kinds of executive actions. Both sides have taken to the streets to argue for or against these laws’ effects on Israel’s democracy.

What may seem like dry material for a law review article on justiciability to outsiders is a hot-button political debate in Israel. Yet there is a solution available to the court that allows both sides to win in a way that also strengthens Israel’s democracy.

Israel’s Marbury v. Madison Moment

“It is emphatically the province and duty of the Judicial Department to say what the law is.” —  Chief Justice Marshall in Marbury v. Madison, 5 U.S. at 177

Israel is not the first democracy to face a political crisis over a supreme court’s ability to review and strike down legislation. The United States, the world’s oldest democracy, faced just such a crisis in the second generation after its founding, in the case of Marbury v. Madison (1805).

The story behind the Marbury case illuminates a court’s ability to establish its supremacy in interpreting the law, while at the same time limiting itself vis-à-vis the political branches of government. Thus it’s worthwhile to tell the story behind the Marbury case.

On March 4, 1801, Thomas Jefferson was inaugurated as the third president of the United States after a bitterly contentious election. Two days before, outgoing president John Adams, Jefferson’s opponent in the race, had appointed nearly 60 of his supporters to federal positions and, on its last day in office, the outgoing Congress had confirmed the appointments en masse.

Jefferson refused to recognize these last-minute appointments, relying on the technicality that some of the commission documents had not been delivered to the appointees before the turn-over of administration on March 4. One of the appointments was of Maryland financier William Marbury as justice of the peace (a low-level judge) for the District of Columbia. 

Marbury then sued Jefferson’s Secretary of State James Madison to force the new administration to honor his appointment (at the time, part of the Secretary of State’s job was to impress the Great Seal of State on official documents and have them delivered to the intended recipients). 

In Marbury v. Madison, the new Chief Justice John Marshall took on a politicized, bitterly personal case. He also had been appointed to the judiciary by President Adams; in his prior job as Adams’ Secretary of State Marshall had sealed the very Marbury commission whose validity was now in dispute. Furthermore, Marshall and Jefferson were first cousins from Virginia and political rivals (Marshall had called Jefferson a shirker for sitting out the Revolutionary War in Paris on a diplomatic assignment.) Jefferson and Marshall had radically different visions for the future of this new country. 

Marshall’s opinion of the court in Marbury was Solomonic. On the petition to allow Marbury to serve as a justice of the peace by having his commission delivered to him, Marshall ruled for the Jefferson administration. The Supreme Court didn’t have the authority to force an executive branch employee—Secretary of State Madison—to deliver the commission and swear in Marbury. 

In ruling for Jefferson, however, Marshall also declared that a provision of the congressional law which set up the federal court system—and which gave Marbury the jurisdictional basis for his petition to the Supreme Court—was unconstitutional and thus invalid. Marshall thus asserted the court’s right to strike down (or uphold) acts of the other two branches of government that were contrary to the U.S. constitution, a right that is nowhere found in the constitution itself. 

Jefferson was not happy with this outcome. Though he had won the battle to prevent the last-minute appointments of Adams, Jefferson lost to Marshall on the larger principle of the judiciary’s right to review the political branches’ acts on grounds of constitutionality. That right may seem natural to us now, but it wasn’t so at the time. Jefferson after all had drafted the Declaration of Independence. He thought of the constitution as mainly a political document like the Declaration, and denied that the courts should have a monopoly on interpreting either one. 

Marshall had established in Marbury what was later called the principle of judicial review. His holding is worth examining again in light of Israel’s current debate. 

Israel’s lack of a constitution is not decisive

Marshall had a written constitution to rely on in establishing judicial supremacy in Marbury v. Madison. Israel doesn’t have a constitution but only a series of Basic Laws addressing certain rights and governmental functions, each passed by the Knesset by simple majority vote, that are endowed with vague, quasi-constitutional status.

Some analysts in Israel believe the solution is a constitutional process, in which the political parties in the Knesset would take their time in drafting and adopting a document by a super-majority that would decide, among other issues, the parameters of judicial review. In fact, back in January I also recommended this solution. Certainly such a process would be more credible and democratic than the “experts commission” appointed by Israeli President Isaac Herzog. 

After studying the history of Israel’s attempts to draw up a constitution, however, I have concluded it isn’t going to happen in the near term. 

Here’s some background: Israel’s declaration of independence of May 1948 envisions a “constitution to be drawn up by a constituent assembly,” and early Knesset sessions in 1950-52 addressed the issue. The main advocate for a constitution was right-wing opposition leader Menachem Begin, who saw it as protection for the rights of the minority political parties and minority groups more generally. The constitution’s chief opponent was David Ben-Gurion, Israel’s first prime minister and leader of the center-left Labor Party, who saw a constitution as infringing on the democratic rights of the majority. 

Though these political positions are today reversed—with the left now calling for a constitution and the right now opposing—there is one constant element. The Orthodox religious parties, often the king-maker in Israeli governing coalitions, have uniformly opposed a constitution both then and now. For them, a Jewish state should have only one constitution—the Torah. 

Until such time as some widely respected Orthodox rabbis in Israel espouse a theology that allows for a secular constitution in a majority Jewish state (halachic precedents may exist), Israelis should expect the religious parties to continue to unite in opposition to a constitutional process. So it isn’t going to happen.

Nor is a constitution necessary to resolve the current debate (though it would be helpful). Israel’s Basic Law: The Judiciary of 1984 doesn’t address the concept of judicial review, but then neither does the U.S. Constitution. Israel’s Supreme Court established the general principle of judicial review of legislation back in 1995 (in the United Mizrahi Bank v. Migdal Cooperative Village case). It has yet to be applied in cases involving Basic Law: The Judiciary, such as the one the court heard on Tuesday (and importantly, in future cases if other aspects of the government’s judicial reforms are passed into law). 

In Marbury, Marshall found judicial review of legislative rules inherent in the “province and duty” of the judiciary. As he explained:
“Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” 

Israel’s Marshallian solution

Israel’s Supreme Court has before it two major issues in the petitions to strike down the reasonableness law. First, should this controversial Knesset law be upheld as legal or should it be struck down? Second, can the Supreme Court even review this kind of law, which is an amendment to Basic Law: The Judiciary? 

The Marshallian solution would first uphold the Knesset law which bars use of the reasonableness standard, thus giving the government a political win on the narrow issue. But on the second issue, Marshallian logic would reaffirm the key principle of the judiciary’s supremacy in reviewing and potentially striking down any law passed by the Knesset, including a Basic Law, including Basic Law: The Judiciary. This would serve as a warning regarding the potential future of other elements of the government’s judicial reforms, if they are passed into law. 

The judicial review principle is critical to the independence of Israel’s judiciary. But a specific judicial review standard is not, especially one vulnerable to criticism on grounds of subjectivity, such as “reasonableness.” Using judicial review to uphold rather than strike down a government proposal would be an elegant way of allowing both sides to win in this debate. 

Elegant Supreme Court decisions may not completely quell the political partisans in Israel, who have latched onto the government’s judicial reforms as a talisman for wider social concerns, but that would be the subject of another article. Marshall didn’t solve all of the crises in early America, though he did strengthen the judiciary while outwitting Jefferson in Marbury v. Madison

Originally published by The Jerusalem Strategic Tribune.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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