Reforming Israel’s Supreme Court promotes democracy

Netanyahu’s plans for judicial reform are necessary to stop a powerful minority from imposing its will on the majority.

Israeli Supreme Court President Esther Hayut (center) with other justices at court in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.
Israeli Supreme Court President Esther Hayut (center) with other justices at court in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.
Jerome M. Marcus
Jerome M. Marcus
Jerome M. Marcus is a lawyer in Philadelphia.

The Israeli left has taken a page from the book of its American friends and denounced as “anti-democratic” the platform of their political adversaries. As in the U.S., the steps proposed by the right are attacked as full-on fascism.

Nowhere is this more the case than regarding the proposal to alter the Israeli Supreme Court’s jurisdiction and method of choosing justices. And nowhere could the hysteria be more ridiculous.

Israel has a unicameral legislature and no written constitution. Such a government structure is hardly unique, and in fact, the country that gave birth to the whole idea of a parliament, England, has had the same system for centuries. An essential element of that system is parliamentary supremacy: No one, not the crown, the executive or the courts, has the power or the right to disobey or undo the command of parliament. In England, as Blackstone’s Commentary explains, any attempt to “seek judicial power above that of the legislature … would be subversive of all government.”

This is because, in the absence of law, there is no limit on what judges can do. Judicial review in the absence of a written constitution—the law governing statutes—necessarily means judges reversing decisions of the political branches without law to guide or constrain them. When judges judge a law unconstrained by some other, higher law, they do so simply by asking whether the political decision before them is unreasonable, contrary to equity or some other grandiloquent formulation that really means, “Do I, the judge, think it’s a bad idea?” When one person’s opinion reverses the command of the people’s legislature, that’s the dictionary definition of “anti-democratic.”

Israel’s courts have no constitutional mandate to countermand the Knesset. The current judicial regime was created out of whole cloth by one unelected man—Aharon Barak, a former chief justice of the Israeli Supreme Court. Barak simply decided that his institution should have the power to reverse the decisions made by Israel’s democratically-chosen representatives in the Knesset. Over several decades beginning in the late 1980s, Barak’s Court unilaterally granted itself this power.

American judicial review, by contrast, rests on the fact that we have a written Constitution that can only be changed by the people acting through amendment. U.S. Supreme Court Chief Justice John Marshall long ago invoked the written Constitution as the foundation for his Court’s right to overturn a law enacted by Congress and signed by the president. The idea is that the Constitution is law, adopted by the sovereign itself (“We the people”) and that the Constitution limits the powers of the legislature and the president. The U.S. Supreme Court, as the highest court of law, has the power to enforce the Constitution over and against other, subordinate laws such as statutes.

The written Constitution, in other words, constrains the Supreme Court, which is thus not enforcing its views against Congress and the president, but only the people’s command in the Constitution.

Even so, the American system has teetered on the edge of anti-democratic action when the Constitution has been “read” without fidelity to the text. The American response to such judicial activism was, if anything, more bitter, intense and immediately intimidating—that is to say, more effective—than anything contemplated by the Netanyahu government.

In the U.S., the biggest threat to democracy came from the right. It began in the late 19th and early 20th century, when, for example, a law limiting child labor was struck down because it violated the principle of freedom of contract (which is, to put it mildly, hard to locate in the Constitution). But the apogee and the cause of the collapse of judicial power came at the beginning of the New Deal. In a series of close votes (mostly 5-4), the Supreme Court’s politically conservative justices struck down laws enacted as part of President Franklin D. Roosevelt’s plan to remake the federal government and, so it was claimed, end the Great Depression.

In response, Roosevelt proposed adding justices to the Supreme Court—“packing the Court,” it’s come to be called—which would have enabled him to appoint a sufficient number of new justices to ensure the Court would no longer oppose him. Two months after the announcement of the plan, one of the Supreme Court’s formerly conservative justices switched sides and started voting with the liberals to uphold New Deal legislation. The court-packing plan came to nothing; the Court preserved its integrity; and Congress and the president were able to get on with the business of choosing the policies that would govern the country.

In Israel, essentially the same drama has played out, but with the politics reversed. The left, not the right, began to insert itself into political decision-making, and the right was impeded in its efforts to enact a political platform chosen by the voters. Beginning in the late 1980s and 1990s—not coincidentally, a few years after Menachem Begin ended the left’s monopoly on political power in 1977—Chief Justice Barak began writing opinions in which the Court asserted the power to strike down laws enacted by the Knesset.

Like the U.S., which has Congressional enactments creating each department in the executive branch, Israel has what are called Basic Laws. These laws are laws like any others, passed the same way and subject to the same procedures. But Barak decided on his own that they provided a basis for the Israeli Supreme Court to do what the U.S. Supreme Court does—strike down acts of the legislature.

Yet there were two essential differences between what happened in Israel and what happened in America.

First, because Israel has no written constitution, there was not even the pretense that what the judges were doing was the enforcement of any decision made by the people. It was clear from the outset—Barak said as much in his decisions—that the Court was not enforcing written law but only the judges’ convictions about what was “reasonable.” No law can be unreasonable, the theory went, so if I, the judge, think an action of the Knesset (or the IDF for that matter) is “unreasonable,” then it can’t be binding law.

Second, Israeli judges were prepared to go to lengths their American counterparts were not in order to undo legislation. Indeed, the Israeli Supreme Court has reversed or asserted the power to reverse not only statutes enacted by the Knesset but even military decisions made in the heat of battle. It has sat in judgment on exactly where the separation barrier that divides Israel from its neighbors should go. It has reviewed the reasonableness of appointments by the prime minister to government ministries, reversing the decisions that didn’t suit the Court. It has even asserted the power to strike down a Basic Law.

Chief Justice Barak led the Israeli Supreme Court to eliminate judicial doctrines that limit judicial review; doctrines that are observed even in the U.S. In America, the courts are empowered by the Constitution to decide “cases and controversies,” so only people who have been injured or affected by government action, or who face imminent injury, can appeal to the courts. Only such people have “standing,” as the U.S. courts put it.

Similarly, the political question doctrine strips U.S. courts of the power to decide cases in which there is no legal command the court could enforce to decide the case. The Constitution tells us how to make treaties, for example, but it doesn’t say anything about how to undo them. The U.S. Supreme Court decided long ago that this was a “political question”—a question for the president and the legislature, both elected by the people, and not for the judiciary—and therefore a question the Court was not empowered to decide.

Barak explicitly rejected any limitations on standing and the political question doctrine. So, any member of the public—whether personally aggrieved or not—can bring a case to the Israeli Supreme Court challenging government action, and the court can strike down any government action as “unreasonable.”

This is hardly democratic. It is the opposite of democracy. Thus, undoing this state of affairs is the restoration of democracy.

The Netanyahu proposals, however, don’t eliminate judicial review of Knesset legislation. Instead, higher majorities on the Court will be required to strike laws down, and an absolute majority of all Knesset members—not just a majority of those present—will be empowered to override a decision to strike down a law.

It is no coincidence that Barak’s extraordinary assertion of judicial power was made shortly after the political right came into its own in Israel. That’s because the assertion of judicial power came from a particular segment of Israeli society: the secular, Ashkenazi left.

This brings us to the second element of the proposed changes to Israeli law governing the Court.

In Israel, the people’s representatives do not have the power to choose judges that they have in the U.S. Instead, the choices are made behind closed doors by a hodge-podge committee, a minority of which are Knesset members. Also involved are leading private lawyers—the people who will argue before the judges they’re appointing—and sitting members of the Supreme Court, who are thus empowered to choose their own colleagues and successors.

Who are these justices, and who are the leading lights of the bar that are empowered to wield this power of judicial selection? They aren’t Mizrachim, the religious, the truck drivers and store owners. Those are the people who support the political right, and who were long ago denounced as “chachchachim”—a derogatory term for Mizrachi Jews. The people who support the Supreme Court’s exercise of this tremendous power are the people who wield that power: The secular Ashkenazi left, which has argued before and appointed itself to the Court for decades.

This is why the second plank of the Netanyahu plan to make the Israeli courts more democratic is to ensure that the Supreme Court’s members are chosen by those who are politically accountable. The proposal is to make hearings on judicial candidates public and reduce (but not eliminate) the power of judges on the selection committee.

Currently, three judges sit on the nine-member committee that chooses Supreme Court justices, but a majority of seven are required to approve an appointment. That means the three sitting justices have a veto over any new member of the Court. The Netanyahu proposal would eliminate this veto and strip the Israeli bar of its seats on the committee. They would be replaced by members of the public chosen by the minister of justice, who is chosen by the democratically-elected prime minister.

Is this the work of brown-shirts wielding torches and throwing rocks through windows? Is it the suspension of law or the criminalization of dissent? Is it, as Aharon Barak claims, a proposal that will “strangle democracy”? Obviously not. It is the reversal of a power grab executed by a minority.

Advocates of these changes recognize that “democracy” means more than just a government in which 50% plus one can make the laws. It also means a government in which minority rights are respected. In the U.S., that respect is mandated by our written Constitution and our written Bill of Rights. But in Israel, the lack of a written constitution means that minority rights are protected in the same way they are in England—by the political process.

Minority rights in Israel are protected very differently than minority rights in the U.S. because in Israel “minorities” includes everybody. There is no Anglo-Saxon or Christian white majority as there was in the U.S. until very recently. According to a Pew study from a few years ago, Muslim Arabs are 14% of the country, so they’re a minority. The Druze, generally opposed to the Muslim Arabs, are a mere 2%, as are Christians. The Haredim are 12.9%. Religious Zionists are about 10%. Traditional Jews who don’t necessarily follow Jewish law are 23%. The largest group? The hilonim—secular Jews—at 40% of the population, which is a plurality at best.

And therein lies both the problem and its solution. For decades, the hilonim were the most effective political group. They became so accustomed to running the country that they thought it was their legal right to rule and to “correct” or restrain any other group that tried to exercise power. Religious Zionists, traditional Jews and the Haredim began to reach political maturity in the 1980s, and the tools now being dismantled were created then to enable the hilonim to constrain the right’s exercise of political power.

Today, the right has enough power to at least constrain the tools created to constrain them, for the simple reason that they won a clear majority in the last election. As an important liberal said long ago, “elections have consequences.” The consequence here, however, will not be the destruction of democracy. It will be the enforcement of democracy.

It shouldn’t be surprising that this once-powerful minority is screaming, but if we know the facts, we won’t be persuaded.

Jerome M. Marcus is a lawyer and a fellow at the Kohelet Policy Forum in Jerusalem.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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