(June 17, 2019 / JNS) Fans of Israel’s Supreme Court have been cranking out the same argument in article after article. The gist of it is that any limitation on judicial review will render us vulnerable to an unchecked Knesset.
The argument omits the obvious: If every difference between the legislature or executive and the court is resolved in favor of the latter, that’s not a democracy, that’s a juristocracy.
This is no surprise, as those who prefer juristocracy to democracy usually wish to obscure that fact. Which they can accomplish either by simply renaming juristocracy “substantive democracy,” or by pretending the juristocracy one is promoting is democracy with a few judicial safeguards.
While both approaches are common in Israel, I’ll focus here on the second one.
In the United States and pretty much everywhere else, the circumstances in which the court can intervene in actions taken by the other branches of government are very circumscribed. The court’s authority is limited to those cases in which a case has been brought by a petitioner seeking redress for harm done to him—that is, a petitioner with standing. Moreover, the court cannot hear cases that are not justiciable—for example because the matter in question is a political one properly resolved by the other branches.
Furthermore, the court can’t intervene in decisions taken by the other branches without very specific grounds; the mere belief that the matter was wrongly resolved by the other branches is not sufficient.
None of these constraints on judicial activity—taken for granted elsewhere—exist in Israel. In Israel, the court itself has done away with requirements of standing and justiciability and routinely disqualifies government actions on grounds that amount to nothing more than disapproval.
It is this system, not the American one, that is being defended so staunchly in Israel.
Nevertheless, one might still be tempted to argue that the court is limited by its dependence on the law, that it has to work with the laws it’s given by the legislature and so its ability to make policy is severely limited.
This sounds plausible, but it doesn’t hold water. First, the court here makes frequent use of a “made in Israel” doctrine it calls “interpretation by objective purpose,” which means that a law should be interpreted neither according to its plain meaning nor according to the legislature’s intent, but rather however the court deems appropriate. In short, statutes here do not constrain justices on any occasion in which the justices do not wish to be constrained.
Second, and more shockingly, the claim that statutes can only be struck down in accordance with constitutional principles is also now being challenged. The court has agreed to hear petitions against the constitutionality of Basic Law: Nation-State.
Since Basic Laws are Israel’s equivalent of constitutional legislation, this challenge to a Basic Law’s constitutionality is incoherent. The court’s agreement to hear this case—with an expanded panel, no less—is tantamount to the claim that nothing is outside its purview, including the constitution itself. (“Otherwise the Knesset will just pass Basic Laws.”)
Don’t believe me? Here’s a test. I invite those who now defending the court to provide an example of a single situation in which the court disapproves of a law or government action but does not—and, in their opinion, should not—have the authority to intervene. (Careful: an example where the court chooses not to exercise its authority is insufficient; it needs to be an example where it doesn’t have the authority.)
Another common argument made in favor of the court runs along the lines that “the judiciary is the least dangerous branch because it doesn’t exercise power of the purse or the sword.” However, this claim fails if everybody has standing and every issue is justiciable, because in that case the court can, in effect, issue orders to the Knesset and government not only regarding what it can’t do but also what the court insists it must do.
What about the argument that “elected officials are prone to do bad things because they are populists who will do anything to get re-elected, while judges don’t need to get re-elected so they protect the rights of minorities”?
Rarely is the anti-democratic sentiment laid out so plainly; not being answerable to the public is presented here as a virtue. I ask you seriously: do you feel more threatened by a relatively large and heterogeneous body that stands for re-election from time to time, or by a small and homogeneous body that has been inbred for generations (sitting justices have an effective veto in choosing their successors), is answerable to nobody, ever, and has consistently extended its own authority?
So let’s just put it out there: These sorry arguments for an essentially indefensible claim (and there are others, just as weak) are all just ways of not stating the real argument for the real claim.
The Israeli Supreme Court is a highly politicized body that is especially concerned with the welfare of particularly favored groups, many of which are anything but weak or powerless. Those who share the court’s political biases or stand to gain from being in its good graces (like the fat-cat lawyers feigning sudden concern for the future of democracy) are loathe to see the court’s self-assigned power limited in any way.
Prof. Moshe Koppel is a member of the department of Computer Science at Bar-Ilan University and serves as chairman of the Kohelet Policy Forum.