A Possible Compromise on Judicial Reform?

Exhibiting a typically Israeli aversion to hyperbole and overstatement, opponents of judicial reform are proclaiming the “death of democracy” because of  the modest measure enacted by the Knesset on Monday. As an American friend of Israel, I’m once again astonished – and frankly disappointed – by the vehemence of the reaction, which includes blocking highways, clashes with police, strikes by doctors and even the threatened refusal to do military duty. What does all this portend for the country’s long-term unity?

The recent measure is far less sweeping than the one that roiled the country in March, which would have allowed a bare Knesset majority to overrule decisions of the Supreme Court, as well as giving the governing coalition the dominant voice in the selection of new judges. The present measure would only take away the Court’s power to overrule actions of the elected government that it deemed “extremely unreasonable,” a nebulous standard that has no specified definition.

Israel is not the only country in which the proper balance between majority rule and individual rights protected by the judiciary is a hot-button issue. In the United States, that issue has been the subject of vigorous debate since the early twentieth century.

But in America, not even the strongest believers in judicial activism would advocate for a judicial right to strike down a government action deemed, under an undefined standard, to be “unreasonable.” That’s something that Israeli opponents of the present government might keep in mind before asserting that the recently-enacted legislation threatens the country with “dictatorship.”

But whatever the rights and wrongs of this debate, it appears to this friendly observer that the most urgent need is for a reasonable compromise. In this regard, I think the proposal recently made by the Histadrut has potential as a starting point for negotiations.

Under the Histadrut’s proposal, courts would not be able to strike down government decisions on grounds of “reasonableness” if they relate to “matters of policy” and were approved by the entire cabinet. Judges would also be barred from exercising that judicial standard to review the appointments of ministers and deputy ministers. But “[a]ll other decisions by ministers… [would] continue to be subject to judicial review, including per the reasonableness standard.”

This proposal needs refinement with regard to the matters that would still be subject to the reasonableness standard and a definition of the “extremely unreasonable” actions that the Supreme Court could nullify on that ground. With respect to the above, a look at American administrative law might be useful.

Our Administrative Procedure Act provides a right of judicial review to “[a]ny person suffering legal wrong because of any agency action.” The statute defines “agency” as an “authority or the Government of the United States” but excludes, either expressly or by judicial interpretation, Congress and the President. The intent of those exclusions would seem to track the Histadrut’s proposal that “matters of policy” not be judicially reviewable under the “reasonableness” standard.

Defining the basis for finding a particular government action “unreasonable” is more difficult. Once again, however, American administrative law may provide some guidance.

Under the Administrative Procedure Act, a reviewing court may overturn agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Well, what’s the difference between “arbitrary,” “capricious” or “an abuse of discretion“ and “extremely unreasonable”? American case law provides the answer.

The cases make clear that review under the standard is narrow and the reviewing court may not substitute its judgment for that of the agency. A reviewing court may reverse agency action under the arbitrary and capricious standard only if the agency has relied on factors that Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. In conducting this review, the court is required to defer to the agency’s policy judgments and factual findings. And importantly, a person, group or institution seeking review of agency action must have “standing” – that is, he must be able to show that the action he complains of results in a concreate injury to him. The standing requirement, which the Israeli Supreme Court has never recognized, prevents the courts from ruling on abstract questions at the instance of anyone who disagrees with a particular government action.

I’m aware, of course, that the government has rejected the Histadrut’s proposal.   But that proposal left undefined the standards pursuant to which the Court would determine the “reasonableness” of a government action to which the standard continued to apply. If the scope of the Court’s review were cabined by standards similar to those discussed above, the coalition might be willing to discuss it.

I’m not unsympathetic with the concerns of secular Israelis that a governing coalition including far-right and religious parties will bulldoze over the rights of the secular majority. But their problem is caused by Israel’s electoral system of proportional representation, which in practice gives religious parties representing a minority undue power because they are always necessary to forming a governing coalition. That system needs to be changed, which could only be done by a center-left/center-right unity government, which has been impossible to form, not because of policy differences, but due to personal animosities among the party leaders . A unity government and electoral reform is what centrist Israelis should be pressing for, not an undemocratic Supreme Court that can defy the elected government by vetoing any legislation it dislikes.