Israel Now: A Modern Incongruous Political Miasma

On February 24^th, 1803, the Seminole Supreme Court Case was decided establishing the well-known precedent of “Judicial Review.” According Cornell’s oft cited legal dictionary, Judicial Review means:

….the idea, fundamental to the US system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary. Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution. 

Without delving into the fact pattern that gave rise to Marbury, the important point is that the United States Supreme Court is vested with authority to review certain laws that are presented to the court with the question of whether or not they are constitutional.

So why preface a writing on Israel with an oversimplified and under nuanced rehashing of the first case you read in law school? Because Israel right now is going through a fundamental reckoning that has the potential to unweave the fabric of Israel’s fledgling Democracy.

Those in the know understand the players involved. For many reasons, Benjamin Netanyahu desires to remain Prime-Minister so long as the Israeli public will have him, and maybe even if they truly don’t want him. (Israeli politics oft reflect a classical Jewish machlochet- or debate- Two Jews, three opinions). In so doing, he has endeavored for the past few years, and in earnest now, a push to pack the Israeli Supreme Court with idealist judges. The background here for non-Israel political junkies is that for as long as Netanyahu has led the (at times right of center, and at times further right wing) Israeli governing coalition, the judges sitting on Israeli Supreme Court have stymied many laws proposed that were seen as too severe or undemocratic. For greater context judges in Israel are selected based on merit and their seniority within the Israeli Bar.

Critics of Netanyahu say he aims to pack the Israeli high court with sympathetic judges, so he may permanently evade prosecution for his personal transgressions. While supporters of his proposal often point to the idea that Supreme Court Justices in The United States are appointed by the sitting president, so why can’t Israel follow suit?

Israel has no formal Constitution. While there are guiding principles that stem from the establishment of The Jewish State, there is no formal treatise for how Israel is to be run. The Israeli Supreme Court can carte blanche review and discredit laws emanating from the Knesset. This back and forth is really the only check and balance baked in by happenstance to Israel’s sociopolitical infrastructure, and runs completely incongruous to the adjacent process of Judicial Review in The United States. The Supreme Court of the United States is tasked to determine whether a law is constitutional or not. That is their authority. That is the Federal Judiciaries check on the Legislative and Executive Branches. The United States boasts its two majoritarian party system, while Israel deals with the miasma of kingmaker politics, which leads to few if any codified checks on the Knesset’s policy making authority.

In under 1000 words, this writing serves to dispel the notion that Israel’s proposed system of judicial appointments should mirror The United States. While our system is imperfect, we have had 246 years to work on how our laws are passed and reviewed. Israel is merely approaching only its 75^th birthday. This writer believes for Israel to maintain its character as both a Jewish and Democratic State, the meritocracy they have established for Supreme Court appointments must remain at least and until a formal Constitution is ratified.