Regardless of their merit, the decisions of Israel’s activist Supreme Court appear to be leading Israel toward a constitutional crisis. The court has significantly overstepped its traditional role in statutory interpretation.
Conversely, upon petition and in the absence of a written constitution, its rulings frequently contravene basic laws and government statutes. Overriding a democratically elected government and redefining constitutional norms. Without broad public support, this is an explosive recipe for national unrest.
Regrettably, Israel doesn’t have any conflict resolution mechanisms. There isn’t a constitutional court, independent legal commissions or impartial arbitration. In their absence or weakness, disagreements intensify because of the lack of a legitimate resolution process. History instructs that most democracies survive constitutional crises; however, their impact can leave governmental institutions scarred for decades.
Why is there a crisis, and why now? This upheaval originated with Aharon Barak, the former Supreme Court president, whose actions paved the way for Israel’s judicial activism. He is commonly regarded as the architect of a “constitutional revolution” that radically transformed Israel’s legal system.
In 1992, the Knesset passed the Basic Laws: Human Dignity and Liberty, plus Freedom of Occupation, with little or no political drama. The Knesset enacted these laws late at night with 53 parliamentarians present. Vote results: 32 in favor, 21 against. With 120 members in the Knesset, a mere 26% of the Knesset members voted for the legislation. Very few MKs present had any sense; they were creating a constitution. They merely considered it a technical update concerning human rights.
Since the laws didn’t seem to be controversial, they passed. But they ignored sensitive issues such as equality, religious matters, politics and the rights of minorities. It provided the court broader discretion to strike down legislation that “violated” these rights. This dramatic development amplified judicial authority; it was a “constitutional revolution.” Clearly, if all or most members had been in the assembly that night, those laws wouldn’t have passed.
Barak advocated for “purposive” interpretations, declaring that judges should interpret laws based on their core intent instead of a literal reading of the text.
This method gave the court broader discretion and is the bedrock of what critics call “judicial activism.” Previously considered outside judicial reach, the court opened its doors to a wider range of petitioners, expanding standing and justiciability, and making many political or administrative questions “justiciable.”
According to Barak, purposive interpretations provide judges with more room to express their legal “philosophy.” As a result, legal and academic publications document Israel’s Supreme Court as one of the most activist courts internationally, and Barak as a driving force in establishing this reputation.
Advocates commend his efforts in safeguarding human rights and reinforcing legal structures. Center-right politicians, many legal analysts and a select few academics present the argument that this elevates the court’s authority beyond that of the legislature.
The court claimed the power of judicial review, despite not receiving explicit authorization from Parliament. The influence of their decisions extends past legal roles, significantly shaping political, security and social landscapes—matters that citizens have placed in the hands of their chosen representatives, certainly not an assembly of judges who lack an electoral mandate.
A judicial decision in January 2024 declared the Knesset’s amendment to the “reasonableness” law invalid, citing “severe and unprecedented harm” to democratic checks and balances.
This was a landmark event in Israeli legal history, as the court invalidated a Basic Law for the first time. This ruling is unparalleled, being the only one of its kind in any democracy. It was determined by the High Court that it possesses the authority to review and invalidate Basic Laws in “extreme cases” wherein the Knesset “deviates from its constituent authority.” A majority (eight of 15 justices) ruled that the amendment was such an extreme deviation that it had to be voided.
The 2024 decision on “reasonableness doctrine” represents a significant constitutional shift. The ruling matters; it is a precedent and marks the first time the court has openly claimed the power to review the constitutionality of Basic Laws. In a country that doesn’t have a formal written constitution, this action effectively creates a new constitutional doctrine.
The key danger of judicial dominance over Israel’s parliament is the erosion of parliamentary sovereignty. When unelected judges have the final say on crucial policy issues, they diminish the power of elected representatives to enact the will of the people.
The defining feature of judicial supremacy is when courts unilaterally set national policy. They bear no responsibility or accountability for the consequences of their judgment. There’s no electoral process for judges, and no oversight exists. The accountability will fall on the legislature when it addresses the consequences of the court’s rulings.
Political structures founded on consensus become unstable because of significant judicial intervention. This increases polarization and the formation of political blocs, increasing political disagreements rather than bridging political divides.
For a robust parliamentary democracy to thrive, institutional pluralism is crucial; each governmental branch has a distinct function, and none should wield excessive power.
When the judiciary becomes the primary decision‑maker—ruling on government appointments, budgetary decisions, national security matters, social or religious policy—public confidence in democratic systems will diminish.
The existence of these risks doesn’t automatically imply that judicial review is inherently damaging. The danger arises when judicial authority expands without clear constitutional boundaries or democratic checks.
