(January 30, 2023 / JNS) The debate over the separation of powers is said to have originated in a proposal by the French political philosopher Montesquieu, first described in De l’esprit des lois, “The Spirit of the Laws” (1748). English philosopher John Locke had previously written about the division of powers between king and parliament. As an ancient example, in the biblical system, there was always to be a separation between king and high priest, as well as between king and prophet. When the Hasmonean dynasty violated the separation of powers, major disruption ensued. Stability was restored by Queen Alexandra Salome when she appointed her brother Joshua as high priest.
In the United States, some argue that the separation of powers has been significantly eroded. The president can use the proclamation power to override or ignore Congress. Today, Congress passes legislation granting the president war powers without actually declaring war as required by the Constitution. Unelected administrative agencies perform legislative, executive and even judicial functions. Entities created by Congress, such as the Social Security Administration, hold hearings and make determinations. Even though these “legal” decisions can be appealed to a court of law, the bureaucracy is usually as far as people will go given the expense and inconvenience of a court case.
Israel is currently in the midst of an intense public debate as to whether judicial reforms proposed by the new government will violate the separation of powers.
Let us take a basic look at the proposals, as they currently stand:
1. Judicial Appointments Committee. Israel’s Judicial Appointments Committee, which chooses Supreme Court justices, has nine members: Three Supreme Court justices, four politicians—one of whom is the justice minister—and two representatives of the Israel Bar Association. A majority of at least seven votes is required to approve an appointment.
Under this system, there is a tendency for the Supreme Court to be self-perpetuating. In other words, the majority tends to favor justices much like their predecessors. Some believe this creates an atmosphere of uniformity and continuity. Others say that it harms democracy and denies voters meaningful input into who is chosen to sit on the Supreme Court.
The attorney general of the current government is seeking to replace the two Bar Association representatives with politicians, one of them a member of the government, the other a regular Knesset member. This would be much more like the American system, in which the president nominates a justice and the Senate confirms them or not. In America, the legislative branch has a lot to say about who will serve on the U.S. Supreme Court. Moreover, in many American states, judges and justices are elected.
2. Override Clause. Under the proposed plan, a majority of 61 Knesset members could prevent the Israeli Supreme Court from hearing appeals against Basic Laws. Since Israel does not have the equivalent of the U.S. Constitution, it has Basic Laws that can be quite detailed in terms of rights and responsibilities. This reform would enable the governing coalition to override the Supreme Court majority. The only case in which a law would be immune to override would be if all 15 justices agree on it.
How does this compare to the United States? The U.S. Supreme Court recently ruled that states or the federal government may prohibit abortion. Previously, in Roe v. Wade, the Supreme Court ruled that the states and the federal government could not prohibit abortions during the first two trimesters. Congress and the states can now pass their own laws concerning abortion, although they cannot determine what the federal Constitution may permit or prohibit. In the past, Congress has passed legislation depriving the Supreme Court of jurisdiction over certain issues, a de facto overruling of the Court.
3. Legal Unreasonableness. The third part of the government’s current plan is to cancel the “legal unreasonableness” determination, which the Israeli Supreme Court can use to cancel decisions made by the government if the Court determines that they are “extremely” unreasonable. In fact, the Court just did this, blocking the appointment of a minister who was previously convicted of a crime.
The U.S. has nothing like this. Although many believe the U.S. Supreme Court has, in essence, rewritten the Constitution, and in reality makes decisions based upon “reasonableness,” the Court is not formally granted such powers. In truth, because the Constitution needs to be interpreted in a conservative or liberal way, the justices clearly do keep the test of “reasonableness” in mind. In Israel, however, because a Basic Law is so much more detailed, the Israeli Supreme Court can find many more reasons to invalidate a law than its American counterpart.
Fights between a supreme court and elected bodies are inherent in the idea of the separation of powers and are nothing new. When the U.S. Supreme Court first decided that it could strike down laws passed by Congress, many cried foul. A high court is unelected in most democracies, so just how much power it should have is always a matter of contention.
The current debate in Israel is not about the difference between democracy and totalitarianism, regardless of how passionate the voices may seem. In fact, a compromise will ultimately be agreed upon. The Israeli Supreme Court may find its power to act as a super-legislature, blocking the supposed excesses of the executive and legislative branches, somewhat curtailed, but Israel’s robust democracy will survive.
Israelis can certainly be proud of one thing: They are the only democracy that the Middle East has ever known and likely will ever know in our lifetimes. Israel sets an example to the world of how important the law really is.
Cliff Rieders is a board-certified trial advocate in Williamsport, past president of the Pennsylvania Trial Lawyers Association and a past member of the Pennsylvania Patient Safety Authority. None of the opinions expressed necessarily represent the views of these organizations.
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