I approach the topic of the reform of the Israeli judicial system not merely as a rabbi who has spent 40 years engaged in Jewish public policy issues, but also as a recent retiree from 20 years as a law professor, a former law clerk of the United States Court of Appeals for the Sixth Circuit, a former chief articles editor at UCLA Law Review and an attorney who practiced complex civil litigation for more than a decade at two of America’s most respected international law firms—Jones Day and Akin Gump. Justice and the rule of law matter to me.
In many ways, the recent brouhaha over proposed reforms to Israel’s Supreme Court borders on the demagogic. In all of the last five national elections in Israel, an alliance of politically conservative and religious Jewish parties repeatedly scored solid pluralities over alternative slates of Jewish leftists, liberals and secularists.
Thus, through five elections in under four years, Israel’s Jewish voters have opted to go in a religious-nationalist direction. The country’s democratic preference was unmistakable.
In each campaign, the bloc led by the Likud Party put court reform before the voters as a major campaign issue and promise. However, no one—emphasize: no one—has suggested closing down the judiciary. The issue is reining in an Israeli Supreme Court that has unilaterally seized political power from the legislature.
Under a prior chief justice, Aharon Barak, the Court declared itself empowered to overthrow laws and enact its own laws based on such concepts as “reasonableness.” Thus, whatever seems “reasonable” to a small coterie of justices can become law without voter participation in the process, superseding the popularly elected Knesset. This is outrageous because, axiomatically, reasonable minds differ.
It is just as egregious that the Court empowers sitting justices to veto candidates for their own Court. These justices were never elected in the first place, so when they choose whom to block and why, they are answerable only to their own whims. Moreover, the same panel on appointments includes attorneys who practice before these justices. The conflict of interest is obvious. American democracy would not tolerate it.
No other Supreme Court in a Western democracy affords its justices unilateral blocking power. In the U.S., for example, the democratically elected president submits nominations to the popularly elected Senate for its advice and consent. Thus, the people’s elected representatives exercise complete control, not an unelected judicial panel.
However, it is important not to confuse the American and Israeli systems. America’s democracy is built on a constitutional structure. When laws are enacted, they may be overturned if found to be “unconstitutional.” In turn, the Court can be overridden by constitutional amendment.
By contrast, Israel is built on the British model of democracy, which has no constitution and relies instead on Parliament to make laws. The highest court in the United Kingdom has no power to negate legislation enacted by Parliament. Rather, it evaluates appeals and offers non-binding suggestions and recommendations to Parliament. In France, when their supreme court for civil and criminal matters, the Court of Cassation, reverses a lower appellate court, the case is remanded to a different appellate panel. The decision of the Court of Cassation is not binding on that remand, and the new appellate panel has full authority to decide the case however it wishes.
In other words, Aharon Barak unilaterally arrogated extraordinary powers to his court well beyond those of any other Western democracy. The Court should have been reformed years ago.
Under the proposed reforms, the Israeli Supreme Court will still hear appeals. They will even retain the power to strike down laws by super-majority. But they will no longer be afforded the abstract “reasonableness” concept they arrogated to themselves. Their opinions will need to be rooted in actual law that can be cited.
In turn, the Knesset will be empowered to override by an absolute majority Supreme Court opinions that are not handed down by super-majority. The check on the Knesset is the voters they will face afterward. This is no less rooted in democratic values than America’s Supreme Court model that has, over the years, inter alia upheld slavery (Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)), protected racism against Chinese residents (Lum v. Rice, 275 U.S. 78 (1927)) and approved mass incarceration of American citizens of Japanese descent (Korematsu v. United States, 323 U.S. 214 (1944)).
There is nothing particularly extreme about the Israeli government’s proposed reforms. Moreover, the hysterical protests against these reforms are hypocritical. If a right-wing Supreme Court had arrogated to itself such unilateral authority and then leveraged that seizure of power to run roughshod over the Knesset for the next half-century, the left would now be demanding these reforms. The American left is doing this right now. It suddenly wants 13 to 15 justices on the Court—and term limits, too—after having quite happily supported the current system as long as they dominated it.
It is shameful that five consecutive Israeli election mandates in under four years were not enough to deter the enemies of the right-religious bloc from defaming Israeli democracy.
