With Israelis set to go to the polls at the end of the year, an issue that has been on the back burner since Oct. 7 will probably again provoke public debate in the Jewish state: that of judicial reform. An effort to make changes in Israel’s Supreme Court and judicial system enraged the opponents of Israeli Prime Minister Benjamin Netanyahu’s government in 2023 and is likely to be on the agenda again.
Joining JNS editor-in-chief Jonathan Tobin in this week’s episode of “Think Twice” is Israeli American lawyer Yonatan Green, author of Rogue Justice: The Rise of Judicial Supremacy in Israel.
Green says no court in the world in a democratic country has the kind of power that Israel’s High Court has seized for itself. And contrary to the claims of the opponents of judicial reform, “the biggest threat to Israeli democracy and the rule of law is the Israeli Supreme Court itself and its allies and its proxies.”
By abolishing the very notions of standing and justiciability, two cornerstones of English and American law, Israel’s courts have arrogated to themselves the ability to overrule the elected government on virtually any issue or action in ways unheard of in other democracies. This has created a system of judicial supremacy that is antithetical to democracy.
Add to that the fact that members of the court have the power to name or at least veto potential fellow judges, and what Israel has created is a judicial oligarchy.
Nevertheless, opponents of reform call any effort to rein in this undemocratic system and re-establish a balance between the judiciary and the elected members of the Knesset and government a threat to democracy. Green believes that many Israelis believe this to be true because when it comes to the judiciary, citizens of the Jewish state are essentially isolated from other democratic nations and have no idea what is considered normative elsewhere.
As a result, they believe that democracy is not a matter of majority rule limited by independent courts restrained from overstepping their responsibilities. Rather, they are under the impression—reinforced by liberal dominance of their education system—that the rule of elites, who have the right and duty to ignore the will of the voters, is democracy. They also seem unfamiliar with the basic concept underlying the American system, which holds that the rights of citizens are derived from God rather than a gift from a government that can be limited or taken away at will.
Green believes the danger from this undemocratic and coercive system that pretends to be democratic, but is not, goes beyond the impact of an out-of-control judiciary. It has increased polarization and made it harder for Israelis to get along with each other.
The solution to this problem, he says, is a much-needed change in Israeli education to promote knowledge about how democracy works, coupled with the election of a constitutional convention that, like the one that wrote America’s constitution in 1787, can design a more equitable system.
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