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It’s about time to ‘shackle’ Israel’s Supreme Court

The court is primarily responsible for the criticism that now calls for a legislative remedy.

Nathan Lewin
Nathan Lewin
Nathan Lewin is a Washington, D.C., attorney with a Supreme Court practice who has taught at leading national law schools including Harvard, Columbia, Georgetown and the University of Chicago.

Prime Minister Benjamin Netanyahu’s new government ignited a domestic firestorm with the legislative proposal by Justice Minister Yariv Levin to “overhaul” Israel’s judiciary and empower the Knesset to override a Supreme Court decision invalidating duly enacted legislation.  Protests have erupted on the streets of Tel Aviv, and celebrated legal scholars are claiming that approval of Levin’s proposal will spell the end of what some call Israel’s “thriving but inadequately entrenched democracy.” Alan Dershowitz—who otherwise strongly supports Netanyahu—says that he would join the protesters because Levin’s proposal would “weaken” the Supreme Court and make it difficult to defend Israel in international tribunals.

The time has come for the Knesset—the only institution that can legitimately enact into law the policies that Israel’s citizens democratically prefer—to define the role that the judiciary (and particularly the Supreme Court) should play. Levin’s most vocal opponent has been former Israeli Chief Justice Aharon Barak. He has come out of the relative silence of retirement to appear in three Israeli television interviews in which he declared that Levin’s law is a “chain that will strangle Israeli democracy” and would mark “the beginning of the end” of Israel’s sovereignty. Critics say Barak is responsible for the excesses now attributed to Israel’s Supreme Court because his court unilaterally seized exclusive authority while Barak was president of the Supreme Court between 1995 and 2006. Barak has theatrically offered to be “put before a firing squad” if his demise would move Levin to withdraw his proposed “drastic shake-up.”

By contrasting the history of their Supreme Courts, Israeli and American lawyers should realize that the Israeli Supreme Court, and primarily Barak personally, is primarily responsible for the criticism that now calls for a legislative remedy. Although it has enjoyed the power to invalidate official action as unconstitutional since Marbury v. Madison, the U.S. Supreme Court has long prescribed limitations on its own power. The court may sustain a party’s constitutional challenge to a law only if that party has “standing”—can demonstrate that the challenged law infringes that party’s personal liberty. The U.S. Supreme Court has also set a boundary for its own authority by permitting federal courts to decide only actual “cases or controversies.” This denies the court any power to issue pronouncements on hypotheticals.

Under Barak’s leadership, the Israeli Supreme Court rejected all self-imposed “shackles.” Calling Barak an “enlightened despot,” respected American federal appellate judge Richard Posner said in a 2007 review of a volume in which Barak laid out his judicial philosophy that Barak had “created out of whole cloth a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.” Israel’s justices—once appointed by a self-perpetuating body controlled totally by sitting Supreme Court members (although today’s selection committee has only three Supreme Court members of a nine-member body)—have perpetuated Barak’s extraordinary authority. On 22 occasions the court has declared a law passed by the Knesset to be invalid because it violates a freedom protected by Israel’s Basic Law.

Contrary to the opinions expressed by Levin’s critics, democracy is not threatened if a democratically elected legislature sets the rules  under which a law passed by a majority of the legislature is voided whenever a majority of judges believe that it offends a Basic Law. Whether 61 votes in the Knesset should override the decision of a judicial majority so as to restore a law to full effect or whether it should take 70 or 80 Knesset members is a detail that the Knesset can debate and decide. Whether a simple majority of a Supreme Court panel should qualify to void a law or whether invalidation of a Knesset law should require the concurrence of 8 or 11 justices is a choice the democratically elected Knesset should make. These are legislative judgments, not judicial prerogatives.

Levin’s proposed law would make several other reasonable-if-debatable changes affecting the membership and power of Israel’s judiciary. It would retain much of the same Israeli judicial structure, including the number of Supreme Court justices and the duration of their service. (One wonders whether, in light of today’s life expectancies and the ages of American presidents and potential candidates for the 2024 U.S. elections, an Israeli Supreme Court might determine that the current mandatory-at-70 retirement for Supreme Court justices violates a liberty protected by the Basic Law.) Its terms—including the limitations it prescribes on the effect of decisions rendered by a majority of the Supreme Court—deserve respectful and deliberate consideration.

Nathan Lewin is a Washington lawyer with a Supreme Court practice who has taught at Harvard, Columbia, Georgetown and University of Chicago Law Schools.

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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