To listen to some of Israel’s opposition leaders, one would think that Israel’s Prime Minister and his coalition partners are attempting a coup d’etat by seeking to curb the current power of the Supreme Court of Israel to invalidate Knesset legislation and control the appointment of judges in Israeli courts. They seem to suggest that Israel currently enjoys a glorious brand of balanced government that ensures that no one part of it becomes too powerful, a system which will be gutted by a predatory right-wing government and undermine Israeli democracy if the reforms go through.
Yet these same individuals are the ones seeking to oust a duly elected government and thwart its effort to nudge the Israeli system of government toward a more democratic, not less democratic, balance of power.
As we and others have repeatedly pointed out, the Israeli Supreme Court does not only have traditional judicial powers, but by virtue of judicial fiat it also plays significant executive, legislative, and administrative roles as well. Ironically, it is the Supreme Court that has usurped powers that are ordinarily held by other branches of the government.
For example, at this time the Supreme Court can freely invalidate legislation passed by the Knesset or decisions of the prime minister or administrative agencies it believes to be “unreasonable.” It also controls the Judicial Selection Committee, which is responsible for selecting judges to all courts in the country, including the Supreme Court. That such power currently rests in unelected officials is the antithesis of a democratic form of government.
Significantly, the Netanyahu reforms would create limited opportunities for the Knesset to override judicial interpretations of statutes and also grant the Knesset a meaningful role in making judicial selections. And isn’t that exactly how we do things here in the United States?
Even more to the point, the Netanyahu coalition – unusually large at 64 mandates – came to power due in part to the disgust of a sufficient number of Israelis over the excesses of the Supreme Court.
For these reasons, we were dismayed by the Biden administration’s decision to sound the alarm that it was “deeply concerned” over the firing of Israeli Defense Minister Yoav Gallant after he called for a “pause” in the effort to pass the legislation aimed at curbing the Supreme Court’s power, which sparked a societal rift that had “penetrated the IDF and security agencies.”
“As the President recently discussed with PM Netanyahu directly, democratic values have always been, and must remain, a hallmark of the U.S.-Israel relationship,” a White House National Security spokesperson told The Times of Israel. “Democratic societies are strengthened by genuine checks and balances, and fundamental changes should be pursued with the broadest possible base of popular support.”
Coming from an administration that governs with the barest of legislative majorities and nevertheless adopts tectonically revolutionary policies with trillion dollar price tags, the call for consensus seems rather rich.
More importantly, however, why is President Biden assigning blame for the crisis to the Prime Minister and his government and not to the opposition for the crisis? Is he not aware that here in the United States, the executive, legislative, and judicial branches each have defined roles to play and are not supposed to encroach on the prerogatives of the others? Is he not aware that the reforms being proposed in Israel will move the Israeli system closer to the American one?
We think we know why the President pointed his finger at the Prime Minister and expressed opposition to the reforms he is championing: because the Supreme Court of Israel has been an indispensable ally in keeping the two-state solution alive by taking related decision-making out of the hands of the popularly elected government.
It is time Biden recognized who is on the side of democracy here.
