We salute Israeli Prime Minister Benjamin Netanyahu for securing passage in the Knesset of a new law sharply limiting the power of the Israeli Supreme Court – an unelected body – to reverse policy decisions made by government officials, cabinet ministers, and other elected officials. Judges can no longer apply the nebulous standard of “reasonableness” to negate those decisions; and this is just the first stage of his administration’s plan to reform Israel’s judiciary.
“Reasonableness” is especially problematic as a legal standard in Israel because the term has never been defined in law by the Knesset. In the absence of a formal constitution, a large part of its legal system relies on case law developed by judges. In the United States, courts typically evaluate a law vis-a-vis the U.S. Constitution; in the case law based process of Israeli justices, by contrast, developing the notion of “reasonableness” – what is due consideration, what is relevant – has often rendered judges the arbiter of policy issues beyond those of a legal nature.
For example, The New York Times reports, the Israeli Supreme Court used the rubric of reasonableness when it ruled that the government should do more to fortify classrooms against rocket fire from the Gaza Strip. It was also invoked to force the dismissal in 1983 of Aryeh Deri, indicted on corruption charges; and when Deri was appointed earlier this year by Netanyahu to head three ministries in his government, the Supreme Court ordered his dismissal because his record rendered him an unreasonable candidate for those positions.
In 2012, the court ruled that it was unreasonable for the Netanyahu government to refuse to appoint a particular candidate for the directorship of the Israeli tax authority, since he was nominated by an expert panel and “stood out for his extraordinary professionalism and extensive education.” The list of examples goes on.
To complicate matters even further, there are very low requirements for standing to bring matters before the court. The rigorous requirement of a direct personal interest in the outcome, as it exists in the U.S. system, is not present in the Israeli one. This means there are any number of opportunities to get court intervention on all sorts of issues. In fact, imposing more exacting standing requirements is among several initiatives planned by Netanyahu to further limit the extralegal influence of the courts.
Not only does the new law strike a direct blow for representative democracy by returning decision making to those elected for that job, but it also represents a victory over those forces on the left that sought to derail the legislative process by taking matters into their own hands. Their efforts included unprecedented mass demonstrations, coordinated labor strikes, ultimatums from some military reservists that they would no longer volunteer for service, and threats from left-leaning world leaders.
In fact, President Joe Biden’s calls for Netanyahu to abandon his plans to reform the Israeli judicial system were perhaps the least welcome. Not only was it unprecedented for a U.S. leader to insert himself so deeply into another country’s clearly internal affairs, but he also implicitly called for the prime minister to go against the decision of the Israeli people, who voted for a party with a platform that promised judicial overhaul. Had Netanyahu thrown in the towel, Israel would have been instantly transformed from a democratic state governed by its elected representatives to one run by the law of the street.
By not succumbing to the blandishments of Mr. Biden and Israeli protesters, Netanyahu neutralized, at least for now, what was for all intents and purposes an attempt to hijack the government’s decision-making authority by forcing him to abandon the judicial reform agenda.
We note our dismay over Biden’s curious calculus that Netanyahu’s plans for limiting the judiciary are undemocratic and therefore threaten the U.S.-Israel relationship, one which he says is partly based on shared democratic values. How favoring decision making by elected officials over non-elected ones is undemocratic escapes us.
