Israel is embroiled in what may be the most intense domestic controversy in the state’s short history. The clash over the government’s proposed reforms to the judicial system and especially the Supreme Court has sent hundreds of thousands of demonstrators into the streets, escalated public rhetoric to the point of incitement, and prompted mutual charges of undermining Israeli democracy.
To give the pro-reform camp some credit, there are aspects of the Supreme Court’s powers that can be legitimately seen as excessive, such as the right to strike down any law on the basis of a vague concept of “reasonableness.”
It is also problematic that the court essentially chooses its membership through the Judicial Selection Committee on which current justices have a de facto veto, thus exempting the unelected judicial branch of government from the oversight of the elected legislative branch.
Thus, to demand that the court forgo its amorphous standard of “reasonableness” and base its decisions on more solid constitutional grounds is not necessarily a bad thing. Nor is the idea that judicial appointments should be subject to some kind of legislative oversight, akin to the Senate confirmation of federal judges required in the United States.
What is deeply problematic, however, is the proposal that a simple majority of the Knesset should be able to strike down court decisions. This does not curtail the powers of the court, it castrates them. It means, in effect, that the court cannot enforce its decisions and the Knesset exercises more or less absolute power over the judiciary.
In practical terms, of course, a Knesset majority may not be able to override court decisions at will. MKs are famously difficult to discipline and there are many on the right who regard the judiciary with great respect. They will not take a potential override lightly.
Nonetheless, we should not downplay the possibility that this specific reform, unlike the others, could constitute a threat to Israeli democracy. As a friend of mine recently asked me, “What’s to prevent the Knesset from voting to keep the government in power for 10 years?” Under the current system, the Supreme Court would quickly rule such a move unconstitutional. With a 61-vote majority capable of overriding the court, this would not be the case.
The repercussions of this could be enormous. The Roman Senate, for example, which lacked any check on its legislative powers, happily voted Julius Caesar dictator for life, which more than anything else put the nail in the coffin of the republic. Unchecked power granted to any branch of government is dangerous by definition, and a power grab by the legislature is no less hazardous than a power grab by the judiciary.
The path to a compromise on the proposed reforms, then, would seem to be clear: The anti-reform camp should accept limitations on the court’s power to unilaterally strike down any law it pleases, as well as expanded legislative involvement in the selection of justices. In return, the pro-reform camp should drop its demand for a Knesset override. This would constitute both genuine reform and genuine protection of Israeli democracy.
Unfortunately, such a compromise seems very unlikely, mainly because both sides believe its opponents are acting in bad faith. The anti-reform camp is convinced that judicial reform is nothing but an attempt by the right to install itself in a quasi-dictatorship, backed up by pro-settlement and haredi factions that loathe the court for its alleged left-wing bias and tendency to obstruct their ambitions.
At the same time, the pro-reform camp sees its opponents as nothing but bitter and resentful losers who cannot accept their electoral defeat and are trying to topple the government by extra-parliamentary means, which is in itself a threat to Israeli democracy. At the extreme, the right claims that the entire anti-reform movement is simply an attempt by the left to preserve its unjust domination over aspects of the Israeli establishment through which it can impose its will regardless of election outcomes.
Both sides are wrong. The right is attempting to address genuine problems with Israel’s judicial system, but it is also guilty of serious overreach. The left is acting in good faith, genuinely concerned about the possible gutting of Israeli democracy, but its rhetoric has spun out of control and it must accept that some of the proposed reforms are justifiable.
President Isaac Herzog has called on both sides to negotiate a compromise. This is unquestionably the correct path to take but neither side has much incentive to take it. The government has the votes to ram through whatever reforms it wants, and the left is determined to use the street as what it believes is the last redoubt of Israeli democracy. Where we go from here is anyone’s guess, but it will not be pretty.