If you subscribe to mainstream American newspapers—or if you read Matti Friedman’s piece the other day in these pages—perhaps you’ve heard that Israeli democracy is in grave danger because of the government’s proposed judicial reforms. The two of us are well situated to address those concerns: our think tank drafted some of the policy papers that have informed the current government.
In other words, those marching in the streets of Tel Aviv are protesting many of our ideas.
They are ideas we stand by proudly—and that we suspect will resonate with reasonable people capable of looking past the noise.
Here is the current reality in Israel: the Jewish state is a thriving democracy, but its Supreme Court is a law unto itself. Its unchecked power began in the early 1990s, when the Court’s president, Aharon Barak, announced that even in the absence of a constitution, the Court could invalidate legislation and block government actions with which it disagreed.
Barak’s so-called “constitutional revolution”—that’s what Barak himself dubbed it—also had the effect of creating an ideologically homogeneous court. Unlike the situation in almost every democratic country in the world, in Israel, sitting Supreme Court justices and representatives of the Bar Association—who have strong personal incentives to vote with the justices, and almost always do so in practice—constitute a majority of the committee that selects new judges on all courts. This has resulted in a self-perpetuating clique, drawn largely from the country’s political left and social elite, that has final say over almost every policy decision in the country.
There were other changes, too—and none of them were voted on by the people or the Knesset.
Barak retroactively declared Israel’s Basic Laws to be a functional constitution and began striking down laws on that basis. (Israel has no formal constitution.) The Court also gave itself the power to veto government actions that satisfied all legal criteria, but that the Court simply regarded as “unreasonable.” It also declared that the attorney general is not merely the government’s legal advisor; he is its boss, in the sense that any directive issued by the attorney general is legally binding on the government. Just imagine in the United States if the attorney general—and not the president—got the last word on government policy on every issue from the death penalty to gay rights.
This is the current situation in Israel. For decades, the majority of citizens have had their voices—and the outcome of their votes—silenced by a growing tyranny of unelected officials and technocrats.
The proposed reforms currently under consideration in Israel’s Knesset are designed to remedy the situation by instituting some basic checks and balances on the Court—checks and balances that are the norm in other Western democracies.
These are its constituent parts:
The government is free to choose its own legal positions and its own line of defense and representation in Court.
The Court cannot use its own views of “unreasonableness” as the sole grounds for invalidating an administrative decision; all other grounds remain unaffected.
The Judicial Selection Committee currently consists of nine members (three sitting Court justices, two representatives of the Bar Association, two ministers, and two members of Knesset—including one from the opposition). The reform would rejigger the committee, most crucially replacing the two Bar representatives with representatives from the Knesset.
The Court would not hear petitions on the constitutionality of the pseudo-constitution itself (namely, the Basic Laws).
The Supreme Court could strike down laws only with a supermajority vote of a full bench of 15 justices. (Note that this would be the first time that the Court’s authority to strike down laws at all would be affirmed by legislation.) In addition, a majority of Knesset members could temporarily override such a ruling.
All of these changes—apart from the last point, involving Knesset override, which is unlikely to survive negotiations, and which we do not support—will bring Israel closer to the norms accepted in other democracies.
The impassioned objections to these reforms focus on far-fetched hypotheticals. What if the Knesset were to cancel elections? What if the government were to outlaw benign religious practices? After all—and this part is usually added in a whisper—some of the current coalition Knesset members look pretty scary and the judges look like responsible adults.
We are sensitive to the alarm these plans—particularly the override provision—have caused to some patriotic Israelis. We are also keenly aware of the cynical fanning of these concerns by a political opposition enraged that Netanyahu is once again prime minister.
At the same time, their concerns about the future of Israel’s democracy betray their own deafness to the fear, frustration, and disenfranchisement experienced by much of the Israeli population for the past three decades. Concerns about some of the details of the proposed reforms cannot be an excuse for maintaining a system of rule by judges that has never been adopted or even voted on by the people.
Moreover, critics of the reforms ought to ask themselves whether the current system would look as attractive if the current situation were reversed, with the Knesset dominated by progressives and the Court tilting right and invalidating progressive measures. (For example, now that the U.S. Supreme Court is made up of a majority of conservative justices with lifetime tenure, many on the left in the U.S. are calling for curbs on the Court’s power.)
As for nightmare scenarios about canceling elections or annulling minority rights, these seek to prevent challenges to the real and present tyranny of the Court by appeals to imaginary future tyrannies. For all its unruliness, no Knesset has ever suggested anything remotely like canceling elections. Israel survived before Aharon Barak’s judicial revolution of the 1990s, with governments as ideologically homogeneous as Netanyahu’s—and no one doubted it was a democracy.
On the other hand, the cloaked jurists on Israel’s Supreme Court claim the authority to suspend a sitting prime minister, and indeed are considering taking such action against Netanyahu right now—in effect canceling the result of the election.
Millions on the political right (and many centrists as well) have been hollering for years about usurpation of power by the Court and its supporting cadres of government lawyers. But they never thought to try to endanger the country’s economy and security to get what they wanted.
Now, supporters of the “juristocracy” are doing just that. They are creating a storm of instability—shutting down traffic, and even, in some cases, not showing up for reserve service—to create a short-term crisis that they in turn invoke as a new reason to preserve the status quo.
Just yesterday, protesters stormed the offices of Kohelet, and attempted to shut it down by barring the entrance with barbed wire and sandbags. The concerns sometimes voiced about political suppression in the wake of judicial reform may be an exercise in projection.
If the current demonstrations manage to derail the reforms, the Court and the professional class that benefit from it will, triumphant, wield its unchecked power even more capriciously than before, resulting in a fundamental disenfranchisement of entire sectors of society, and eventually, the eruption of a crisis deeper than the current one.
Moshe Koppel is the chairman of the Kohelet Policy Forum, and an emeritus professor of computer science at Bar Ilan University. Eugene Kontorovich, a scholar at Kohelet, is a professor of constitutional law at George Mason University Scalia Law School.
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