Israeli Judicial Activism is Not American Judicial Review

Former Supreme Court chief Aharon Barak is likened to Justice John Marshall, who established the principle of Judicial Review in the landmark Marbury v. Madison case when the United States was in its infancy, a mere 16 years following ratification of the U.S. Constitution. Marshall held that the Court could review and even disqualify orders and laws of the other branches of government deemed to be in violation of the Constitution. However, Marshall established this power in line with Article III of the Constitution and limited the Review authority to edicts that purport to violate the aforementioned document, which itself was created through a long, painstaking, thorough and fundamental national ratification process.

In the Israeli judiciary, the process of legal disqualification is not called “Judicial Review” but rather “Judicial Activism” and for good reason. The difference is not a matter of linguistic nuance but rather a fundamental distinction in approach and a lesson in arrogance. In 1995, Barak did not simply invoke the previously non-existent authority of the Judiciary to disqualify orders and laws; Barak, of his own accord, unprompted and unauthorized, elevated what are referred to as “Basic Laws” (essentially structural laws regarding the function and nature of government) to constitutional status. The Judiciary alone, of its own accord, determined, a full 50 years after the country’s establishment, that Israel, in fact had a constitution. None of these supposedly “constitutional-level” laws (“Basic Laws”) were resultant from anything resembling a constitutional convention and the courts, for 50 years, never related to these Basic Laws with special elevated or foundational status. Barak essentially legislated this new status from the Bench, a power that is reserved for the Knesset as the legislative branch of government. These Basic Laws were all passed over the course of time by simple majorities, not super majorities. They are also ammended quite regularly, even after the “constitutional revolution” of 1995, with simple and not “super” majorities.

In disqualifying laws of the Knesset, the Judiciary is indeed acting beyond its designated authority on the balance of power among the branches and hence is not reviewing laws but is behaving in activist fashion. For the Knesset to enact legislation to keep the Judiciary in check for overstepping its authority is a natural, warranted and critical necessity of the delicate Balance of Power at the bedrock of republican governance. For the Knesset to take back its essential legislative authority and enable it – and it alone – to establish law is critical to the structure of Israel’s democratically influenced Republic. As long as passage of a “Basic Law” does not require a “super” or “special” majority, the Court has no authority to invalidate laws on their basis. The Court should have such authority, but it need be granted by the Legislature, the Knesset. That is what has been proposed, along with the ability of the Legislature to overcome such judicial invalidation; a necessary condition, since Basic Laws still do not form a legitimate constitution. The “Overcome Clause” (פסקת ההתגברות) is, in fact, the most elementary form of defense against a hubris-filled judicial oligarchy that is the Barak Court and its descendants since 1995 – and it is long overdue.