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January 20, 2023

Israel’s Judicial Reform ‘Controversy’ Is Much Ado About Nothing

The Netanyahu-led government’s judicial reform package is just and proper.

Like a dog returning to its own vomit, the supercilious elites of our so-called international community maintain a rather curious fixation. Like clockwork, these elites always find a way of singling out for opprobrium one tiny nation-state, no bigger than New Jersey. That state, of course, is the Jewish state, the modern State of Israel. There is simply no other country on Earth that attracts such disproportionate, and often vehement, disparagement from our would-be moral superiors.

The current hullabaloo, merely the most recent manifestation of this inveterate Jew-bashing addiction, takes the form of the roiling debate over the new Benjamin Netanyahu-led Israeli government’s proposed judicial reform package. Tens of thousands of activists have taken to Israel’s streets to protest the proposal, and newspaper editorial boards from Washington, D.C. to Brussels have condemned the reforms in no uncertain terms. If one were to believe the critics, the government’s judicial reform, if successfully implemented, would make Israel more “authoritarian,” undermine the country’s “liberal democracy,” result in “democratic backsliding” or — egad! — make Israel resemble Viktor Orban’s Hungary.

As Proverbs 26:11 teaches: “As a dog returns to his vomit, so does a fool repeat his folly.” There is no substantive basis whatsoever for these performative shrieks of hysteria. The Netanyahu-led government’s judicial reform package is just and proper, as a matter of both political theory and comparative constitutional law. Ironically, moreover, despite the reflexive condemnations of those purportedly concerned about the health of Israel’s vibrant democracy, the judicial reform package would substantially bolster Israel’s actual democracy by diminishing its juristocracy.

Israel is a fairly young country with still-developing political and legal institutions, but it most clearly resembles the British model of governance (albeit, without a figurehead monarch): a multiparty parliamentary system where parliament is (putatively) supreme, a separation of powers with an independent judiciary, a common law-based legal system and a formally unwritten constitution. But despite Israel’s modeling itself in large part on the British model of governance, and despite modern Britain’s well-established norm of parliamentary supremacy, things began to go haywire for Israel in the 1990s. During that time, Aharon Barak, chief justice of Israel’s Supreme Court, pronounced a “constitutional revolution” and arrogated to his institution power unprecedented for any supreme court in any Western-style democracy.

As a result of Barak’s “revolution,” the Court usurped a plenary power to overturn any piece of legislation at any time, for any reason whatsoever. At first, the Court found itself bound by Israel’s 13 quasi-constitutional “Basic Laws,” but it soon discarded even that limitation. In recent years, the Court has seen fit to nullify the will of the people — expressed via normal legislation and Basic Laws alike — on such unfathomably flimsy grounds as being “extremely unreasonable” or being “too political.” Unbelievably, the Court now also wields the power to override the elected government’s selections for Cabinet-level ministerial positions, as it did just this week when it vetoed Netanyahu’s choice for minister of health and minister of the interior, Aryeh Deri.

There is a term to describe this sort of juristocracy, where a nation’s supreme court rules the roost: judicial supremacy. And judicial supremacy is definitionally impossible to reconcile with parliamentary supremacy, which more decisively secures the will of the people and is also the putative model for Israel’s democracy in the first instance.

From an American perspective, Israel’s wildly unhinged system of judicial supremacy should also be deeply offensive to our most cherished norms of popular sovereignty, wherein “We the People,” as invoked in the Preamble to the U.S. Constitution, reign supreme. To wit, if the U.S. Supreme Court acted the way the Israeli Supreme Court acts, cities would probably burn.

Although de facto judicial supremacy has erroneously been embedded in American constitutional law since an obscure 1958 U.S. Supreme Court case called Cooper v. Aaron, the subordination of legislative and executive power to black-robed oligarchy is utterly anathema to American constitutionalism. President Andrew Jackson is often quoted as saying in response to Chief Justice John Marshall’s 1832 ruling in Worcester v. Georgia: “John Marshall has made his decision; now let him enforce it.” (In actuality, Jackson said something similar but not as easily quotable: “The decision of the Supreme Court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.”)

President Abraham Lincoln was even more explicit in his 1861 First Inaugural Address, wherein he lambasted the abominable Dred Scott case of 1857: “(T)he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Both Jackson and Lincoln were channeling Alexander Hamilton’s famous essay, The Federalist No. 78, where he wrote that the U.S. judiciary has “neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Benjamin Netanyahu is an extremely bright and well-read man, but he should refamiliarize himself with Alexander Hamilton.

Israel’s Supreme Court currently maintains horrifically low approval ratings; the right-leaning Israeli public stridently opposes the left-wing Court’s serial, decadeslong power grabs. The Netanyahu government’s judicial reform package would primarily (1) make it easier for the Knesset (Israel’s parliament) to override misbegotten Supreme Court rulings by a certain threshold, and (2) amend the extant practice of selecting new justices from the current egregious system, wherein justices essentially choose their very own successors in what can only be described as a grotesque act of nepotism.

The first of these two reforms amounts to a basic restoration of parliamentary supremacy — a fulfillment of Israel’s conscientious modeling of itself on the British model of governance. Indeed, even many Americans, over the decades, have proposed constitutional amendments permitting a supermajority of Congress to override the U.S. Supreme Court. And the second of the Israeli government’s two primary judicial reform measures would bring Israel in line with the American model, also replicated throughout much of the Western world, wherein democratically accountable politicians select judges and justices.

This is all incredibly standard, straightforward and noncontroversial. The result, if the reforms are passed, would be a more democratic State of Israel. Irony abounds.

Israel’s manifold critics, alas, are too preoccupied with their own vomit to care.


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