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The Israeli Supreme Court violates democratic norms

The Court has too much power and too little oversight.

Supreme Court Justice Noam Sohlberg arrives to the Supreme Court in Jerusalem on July 18, 2022. Photo: Noam Revkin Fenton/Flash90
Supreme Court Justice Noam Sohlberg arrives to the Supreme Court in Jerusalem on July 18, 2022. Photo: Noam Revkin Fenton/Flash90
Ken Abramowitz
Ken Abramowitz

In the recent weekly Torah passage of Yitro (Exodus 18:13-27), Moses’s father-in-law observes his son-in-law exhausting himself as he tries to judge the problems and disputes of the Israelites.

The Israelites are wandering in the desert after their release from 200 years of slavery. Moses is both their leader and their “chief justice.” Moses’s father-in-law Yitro (Jethro) worries that Moses will consume himself by doing these two jobs.

Yitro makes the following observations:

1) Moses was hearing all the judicial cases, big and small.

2) Moses had no deputy helping him at the court and only one deputy, Aaron, helping with his leadership responsibilities.

3) The people he served had to wait all day to see him.

Therefore, Yitro proposed several common-sense managerial solutions:

1) Moses should hear only the “major” and most “difficult” cases.

2) Lower courts should hear all the cases first.

3) Moses should appoint judges based on talent and integrity.

So, how are the State of Israel’s courts doing 3,300 years later?

The quick answer is “F” for failure. Why? Because the Israeli Supreme Court violates democratic values and common law in seven ways:

1) Instead of allowing the political leader—the prime minister—to nominate justices, as in the U.S., the Israeli Supreme Court maintains a veto over the selection of new justices.

2) The Court allows anyone to petition it without forcing the plaintiffs to seek redress in lower courts, as in the U.S.

3) The Court permits such petitions even if the plaintiffs have no legal standing, which the U.S. does not allow.

4) The Court rejects candidates who believe in traditional Jewish values, thus failing to appoint the best judges to the job.

5) The Court chooses to listen to political cases instead of focusing on issues that are “difficult” or “major,” as suggested by Yitro in the Torah.

6) The Court does not maintain equal protection under the law. It often discriminates against Jews, who represent 80% of the population, in favor of Muslim Arabs, who represent 20% of the population.

7) The Court routinely seeks to criminalize mostly right-wing elected politicians through bogus charges, thus impeding their ability to rule as they were elected to do.

So what should the Israeli government do to fix its out-of-control Supreme Court, which has accumulated more power than any other democratic court in the world?

The Israeli government should insist on the following seven changes:

1) The prime minister, as the elected executive, should nominate Supreme Court justices, subject to Knesset approval.

2) Plaintiffs must seek redress in lower courts before appealing to the Supreme Court.

3) Justices appointed to the Supreme Court should be the best and the brightest, not the most politically left-leaning.

4) The Court must maintain equal protection under the law and stop systematically discriminating against Jews.

5) The Court cannot be allowed to routinely reject laws passed by the elected Knesset.

6) The Court cannot routinely seek to criminalize politicians it doesn’t like.

7) The Court should immediately stop appointing attorneys general and other government legal advisors. That is the prime minister’s job.

All these changes will undoubtedly be contentious, but the time has come for the Israeli Supreme Court to move away from being an embarrassing exception to Western democratic rule. Israel’s future as a thriving democracy depends on it.

Ken Abramowitz is the author of The Multifront War. This article was edited by Dr. Rachel Ehrenfeld, president of the American Center for Democracy (ACD). See the sources for this article and more research in the Additional Reading section.

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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