Why Netanyahu is right to go after overmighty Supreme Court

It is far more powerful than any of its counterparts in other Western democracies — but without any of the limitations


JERUSALEM, ISRAEL - DECEMBER 29: Former and designated Israeli Prime Minister Benjamin Netanyahu speaks at the Israeli parliament during a new government sworn in discussion at the Israeli parliament on December 29, 2022 in Jerusalem, Israel. Conservative Benjamin Netanyahu and a bloc of nationalist and religious parties won a clear election victory last month and will be sworn in as government to the Knesset today. This completes Netenyahu's political comeback with a record sixth term in office. (Photo by Amir Levy/Getty Images)

February 02, 2023 12:00

The proposed judicial reforms of Israel’s new government have provoked eulogies for the country’s rule of law.

US Secretary of State Antony Blinken even hinted at his government’s concern about the plans during his visit to the Jewish state this week, with arch comments about the “shared values” of democracy.

He did not comment on how his boss’s recent plan of adding justices to the US Supreme Court until it issued decisions he likes fits with those values.

An understanding of the current tyrannical power of the Israeli legal officials, compared to the modest proposed reforms, demonstrates that such laments are absurd — at least if one considers the UK a democracy.

Israel’s Supreme Court is far more powerful than any of its counterparts in other Western democracies — but without any of the limitations or controls faced by its peer institutions.

Like the UK, Israel lacks a written constitution, and had functioned under the principle of parliamentary sovereignty for most of its history. Unlike the UK, there is no customary constitution incrementally established across centuries.

Rather, the Supreme Court unilaterally declared an end to parliamentary sovereignty in what the judges themselves cheerfully recognised as a “judicial revolution” in the mid-1990s.

The court proclaimed that it had the power to strike down legislation, which it said was granted to it by a “Basic Law” — but unlike constitutional instruments, Israel’s Basic Laws are adopted by simple majorities, and can be overridden by subsequent majorities. The Basic Law the court claimed authorises judicial review was passed 32-21, a testament to the Knesset’s lack of clarity that it would be treated as a constitutional document.

The court went on to eliminate all restrictions on standing, letting it rule on any and all issues in public life whenever it chooses, without any lower court proceedings or fact-finding.

It invented the doctrine of “reasonableness” to allow it to block any government action — including even the designation of a prime minister — that it considers “unbalanced”. Of course, there no invisible scale for balancing trade-offs in public policy. In such cases, the judges merely substitute their preferences for those of elected officials.

Finally, the court declared that it has the authority to decide that any new Basic Laws, or amendments of old ones, are themselves unconstitutional.

Having rejected parliamentary sovereignty, the court has finally even rejected the sovereignty of the laws it claimed authorised judicial review, and now recognises no principle higher than its own opinion, a principle British judges would never think to suggest.

What is little appreciated about the reforms is that they would for the first time explicitly authorise judicial review in the Basic Laws. They would vest the court’s actions with a democratic imprimatur it currently lacks.

At the same time, it would impose restraints, requiring expanded panels and a supermajority of the court to strike down legislation.

Another reform would increase the Knesset’s representation on the judicial selection committee. In Israel today, the judges themselves control the selection of their own successors and all lower court judges: sitting justices have three seats on the nine-member commission that selects all judges in the country.

Another two are held by representatives of the bar association, who almost always vote with the justices, who themselves vote as a bloc. The UK has itself moved to a judicial appointments commission with judges represented on it.

But prior to 2006, the Lord Chancellor selected judges, and whether the new system is an improvement or not, certainly the UK was a well-functioning democracy before then.

The government would not have the near-absolute control over appointees as in America during periods of undivided government, but would end the current system of judicial self-perpetuation.

Naturally, governments with different views would appoint different judges, ensuring a diversity of perspectives on the bench.

One cannot imagine judges of the UK Supreme Court taking to the airwaves to condemn legislative proposals to change the composition of the selection committee, another sign that their Israeli counterparts function as political actors.

One of the most significant aspects of the proposals actually has nothing to do with the courts, but with government lawyers.

In Israel, the Attorney General is not independently chosen by the government, but has the power to veto any government policy by a mere say-so. At each level of government, legal advisers are not accountable to their ministries, can refuse to represent their ministers, and also forbid them to seek private representation.

Indeed, government legal advisers publicly denounce government policies, and argue against their own clients in court. Contrast this with the UK, where the government can and often does choose to take advice from private counsel, with advice remaining strictly confidential.

Perhaps the most controversial suggestion would allow the Knesset, by a special 61-vote majority, to suspend Supreme Court nullification of a statute.

This is the part of the proposals most likely to be dropped, but it is not frightening in itself, given that Israel’s Supreme Court is not interpreting a constitution, but rather simple legislation. It is hard to understand why a law passed by 32 cannot be temporarily modified by 61.

Critics of the reform plans claim that the court is the only check on the unicameral Knesset, whereas in the UK the House of Lords and devolution limit government power. But Israel has other checks, such as a proportional representation system that results in a large number of parties being needed to assemble a government.

The prime minister’s party typically commands no more than half the seats, making every coalition unstable. Elections happen on average every 2.5 years.

Even some in Israel’s opposition are now conceding the legitimacy of calls for change, and starting to discuss the details.

The escalation of rhetorical assaults on the proposals is not about reality but a calculated attempt to create an international diplomatic veto on Israel’s elected government — a tactic very much in keeping with the undemocratic spirit of the juristocracy.

Eugene Kontorovich is a professor of constitutional law at George Mason University Scalia Law School in Arlington, Virginia, and a scholar at the Kohelet Policy Forum, a Jerusalem think-tank

February 02, 2023 12:00

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