Ethnic Conflict Underpins the Judicial Conflict

Benjamin Netanyahu’s attempts to change the Israeli judiciary have provoked outrage across the progressive left. Indeed, President Biden criticized the legislation (which says Supreme Court can no longer use its reasonableness doctrine to overturn parliamentary legislation) as a threat to Israeli democracy. This rhetoric, however, has nothing to do with protection of democracy but instead protecting the decision making in service of liberal goals.

Moreover, many legal analysts, including Reason’s Ilya Somin, believe that overturning the reasonableness doctrine is the least objectionable of the proposed changes. He wrote,

Critics of “reasonableness” review argue that it’s an amorphous standard easily abused by judges. Indeed, it goes well beyond practices in most other constitutional democracies. While there are some similarities to US “rational basis” review, the latter is far more deferential. The Israeli test is somewhat more akin to various types of heightened scrutiny that in US jurisprudence are usually reserved for government policies threatening fundamental rights or discriminate on the basis suspect classifications, such as race, gender, or religion.

Indeed, one of the sitting Israeli Supreme Court judges “criticized what he said was the frequent and inappropriate use of [this] standard by the court ….”
Earlier this year, SCOTUS limited the ability of government agencies to implement certain policies absent explicit congressional approval. As a result, the EPA was unable to unilaterally use its discretion in implementing the Clean Air Act. Liberal Democrats condemned this ruling as somehow a threat to democracy even though it took decision making out of the hands of unelected bureaucrats and put it in the hands of elected officials – similar in many ways to the position liberal Democrats have taken in the Israeli conflict. Taking legislative power out of the hands of elected Knesset officials and to maintain the unconstrained decision making of the unelected members of the Israeli Supreme Court.

There is another important aspect of the current controversy: ethnic representation. US liberals are keen to point out when governing bodies are not representative of the populations they serve. The ethnic conflict between Jews and Arabs has been the focus of inequality in Israel – even leading many critics to characterize Israel as an apartheid system. However, just as consequential has been the inequality Mizrahi Jews – those descended from Arab countries – have faced at the hands of Ashkenazi Israelis. The judicial clash must be understood within the context of this ongoing conflict.

In Israeli, leadership of the most influential organizations has historically been dominated by Ashkenazis though they only comprise 32% of Jewish population compared to Mizrahis who represent 44%. Attacking this bias, Likud Knesset member Dudi Amsalem concluded:

You’re prepared to give us degrees and even cars, but not to allow us to rule. You never granted us that: not in the security forces, not in the judicial system, not in academia, not in culture, and certainly not in the Supreme Court and the state prosecution service.

Indeed, while Ashkenazi Israelis have comprised the vast majority of the 79 permanent Israeli Supreme Court judges, only 6 have a Mizrahi background. This stark ethnic imbalance is one of the driving forces of the rightwing desire to transform the judiciary.

This ethnic division has also been reflected in the anti-reform demonstrations where few Mizrahi Jews have participated. Left activists contend that this largely “reflect the interests of a largely secular, urban, liberal Ashkenazi elite — one that is resistant to interrogating its own complicity in longstanding hierarchies that for Palestinians and Mizrahim, have been anything but democratic.” They lament:

The invisibilization of Mizrahi voices in the “pro-democracy” protests, as many have called them, has played right into the strategy of Likud and the Israeli far right, who want to recast their attack on democratic values as an effort to erode Ashkenazi supremacy and elevate the voices of marginalized Mizrahi communities.

This essay seems to indicate that liberals are quite willing to give power to unelected bodies as long as they promoted the desired policies. Liberals also seem to be selective in promoting diversity. These Israeli ethnic imbalances are quite similar to those facing women in the United States a few decades ago. And what was the position of liberal Democrats: focus on appointing more women. However, they are silent on the ethnic imbalance where Jews of Arab descent – People of Color? – are dramatically underrepresented because the Mizrahi community has the “wrong” politics.

Whether or not one supports the judicial reforms, we must be sensitive to the way unelected bodies can usurp the power of elective ones. We should also have a better understanding of the historical grievances Mizrahi Jews have endured and why they have such an antagonism to the Israeli Supreme Court.

Robert Cherry is author of

Why the Jews? How Jewish Values Transformed 20th Century American Pop Culture

and

The State of the Black Family: Sixty Years of Tragedy and Failures – And New Initiative Offering Hope.