Israel is not America

One thing we keep hearing as defense to the proposals to neuter the Israeli judiciary is:

Well, we’re only following the American model where justices are chosen by political bodies, courts do not rule on reasonableness, and decisions of our courts can be overridden by legislative bodies.

These rationalizations are cynical falsehoods covering a lust for power by the government and its extremist ministers who would sweep away any restraint on the Knesset’s power to trample up on individual rights, equality before the law, and protection of minorities.

In a webinar a few days ago Prof. Rivka Weill exploded the myths in about 10 minutes. Weill, a professor at Israel’s Reichman University, formerly the Interdisciplinary Center Herzliya, described 4 truths which should be self-evident even to the apologists for the Coalition.

First, the US Executive is separate from and restrained by the Congress. So if President Biden decided to exempt religious school students from paying taxes, for instance, he would have to get the consent of Congress to do so. In Israel, the government and the legislature are one political entity, controlled by the same majority, so whatever the coalition wants, it can get.

Second, the US Congress has two houses which often disagree with each other, especially as now when they are run by different political parties. So while today, the US Senate might agree with, for example, Pres. Biden’s position on canceling student debt, the House of Representatives would not. Again, the check does not exist in Israel with its one legislative house.

Third, the US has a federal system, where the states have a key role in determining what the law should be. For that reason, today many states continue to protect abortion rights under state constitutions and statutes even though the US Supreme Court ruled in Dobbs v. Jackson, that there is no federal constitutional right to an abortion. Similarly, the lack of federal action on exclusionary zoning practices that bar inexpensive housing has not stopped many states from taking action against such practices, either through their legislatures or their courts.

Finally, the US legal system is backed up by a written constitution that cannot be amended by a simple vote of the Congress. Thus, notwithstanding the unfortunate Dobbs decision, many rights, of free speech, gender equality, fairness in taxation and public services, are backed up by a series of constitutional decisions that the Congress has no power to override in the absence of a federal constitutional amendment. The Knesset in its current lurching towards a monolithic dictatorship, faces no such constraint.

The only barrier to legislative elimination of freedom and equality in Israel lies with the Supreme Court. There are no other safeguards.

Similarly, Israel has no safeguards against unreasonable and arbitrary executive decisions other than the courts. It is not uncommon for the US Courts, both state and federal, to strike down administrative decisions that are not reasonably grounded. As a trial judge, I used to do that myself. The line between improper second guessing of an executive decision, and striking a decision as arbitrary, may not be easy to draw in theory, but it is workable in practice. Further, as Prof. Weill pointed out, the thought that a decision might be overturned in court frequently leads to more responsible behavior by political actors who do not like their decisions to be overturned. Alexis de Tocqueville understood this well when he wrote in 1840 that American lawyers function like aristocrats in old world regimes in braking the passions of political actors seeking to appease inflamed constituents.

In sum, were I in Israel today, I would be on that March from Tel Aviv to Jerusalem. The notion that arbitrary actions can be exempt from judicial review is completely alien to American jurisprudence. To call such a right of review imposing on the people is nothing short of absurd. American and before that English courts have reviewed improper executive actions for hundreds of years under the so-called prerogative writes. The rule of law so basic to democracy as opposed to tyranny demands such review. Essentially, the Governing coalition is saying it should be judge, jury and executioner of all its actions without any constraint from any other source. Under the Israeli system of government, only the courts can serve as that constraint.

The Coalition is thus seeking powers that do not exist in the US, England or any other functioning democracy. Those of us who love Israel should do all we can to stop this Knesset approval of an onrush to executive dictatorship, in reality a dictatorship by the extremist forces in the government that are driving this onslaught against the Israeli courts.