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Moderation is Key to Democratic Supremacy

Israel’s new Justice Minister, Yariv Levin, recently announced a series of sweeping reforms to Israel’s judicial system, which, if enacted, would change everything from how judges are selected to limiting the ability of the Supreme Court to exercise judicial review over legislation it deems unconstitutional. Predictably, the proposed changes were widely criticized by the newly formed opposition who argue that the reforms undermine Israel’s democracy. However, these changes are not an attack on democracy, but a reaction to years of what many perceive as hubris by elitists in the legal community.

One of the most prominent critics of the proposed changes is the former Chief Justice of Israel’s Supreme Court, Aharon Barak, who, in recent interviews to all three major networks, reiterated his view that Levin’s plan poses a danger to Israel’s democracy.  Notably, Barak is widely viewed as the father of judicial activism in Israel and has advocated the position that judges should dynamically interpret statutes consistent with the values of the “enlightened community.” As one might expect, this supercilious approach has caused much of the outrage stemming from Israel’s right-wing which finally came to a head with the recent formation of Israel’s new government. Of course, not all Israeli justices agree with Barak’s approach, but ultimately it is his 1995 “constitutional revolution” which set the goal posts for what has now become a decades long debate over the separation of powers in Israel.

In the landmark 1995 decision, United Mizrahi Bank v. Migdal Cooperative Village, Barak determined that Israel’s Basic Laws of Human Dignity and Freedom and Freedom of Occupation grant Israel’s Supreme Court the power of judicial review. While this decision has been likened to Chief Justice John Marshall’s decision in Marbury v. Madison, what distinguishes the power of judicial review in Israel from that in the United States is the lack of limitations on the ability of the Israeli Court to exercise it.

First, the political branches in Israel don’t have the same influence over judicial appointments as other western democracies. In the early part of the 20th century, in what is now known as the Lochner era, the U.S. Supreme Court handed down a series of controversial activist decisions striking down federal laws on the basis of substantive due process which it claimed allowed the Court to protect certain rights not explicitly enumerated in the Constitution. What ended Lochnerism was the political branches’ control over judicial appointments. Alleging judicial overreach, President Franklin D. Roosevelt successfully ended the phenomenon by threatening to pack the Court with more justices if it did not stop invalidating legislation essential to his New Deal demonstrating that effective checks and balances between all the branches of government go a long way towards preventing one branch of government from usurping too much power.

However, unlike in the United States where Supreme Court justices are appointed by the President and confirmed by the Senate, giving both the legislative and executive branches of government an effective check on the judicial branch, judges in Israel are selected by the nine-member Judicial Selection Committee comprised of two members of the Knesset, two ministers, including the Justice Minister who chairs the committee, two representatives of the Israeli Bar Association, and three Supreme Court justices. While a nominee to the Supreme Court requires the votes of seven of the nine members to be confirmed, a majority of the committee is composed of unelected individuals and the three Supreme Court justices can veto any nominee. Levin’s proposed reforms would reportedly replace the two representatives of the Israeli Bar Association with a Knesset member and a minister giving each branch of government equal representation on the committee, add two more “public representatives” appointed by the Justice Minister and reduce the number of votes needed to confirm a Supreme Court justice from seven to six.

While this proposal ensures that the identity of the justices reflects the will of the majority, the reform still presents a problem. Because Israel has a parliamentary system of government in which the executive branch is necessarily run by a majority of the legislative branch, this plan places too much power in the hands of the majority. Levin would be wise to leave the committee at nine members and the vote threshold for confirming a Supreme Court justice at seven but replace the two representatives of the Israeli Bar Association with a minister and Knesset member thereby giving each of the three branches of government equal representation. While this would still give the three Supreme Court justices on the panel the power to veto any nominee, it would require the committee members to debate the merits of each nominee instead of allowing the government pushing through its nominees without any check on its power. Indeed, since then-Justice Minister Gideon Saar’s 2008 reform increasing the amount of votes a Supreme Court nominee requires for confirmation from five to seven votes, which prevented the unelected members of the committee from rubber stamping its own nominees, the Supreme Court has become more ideologically diverse.

Nevertheless, even if this plan to dramatically rework the way judges ae selected is approved without any modification, empowering the elected branches of government to choose its judges places Israel squarely within the norm of other western democracies.

Second, whereas the U.S. Supreme Court will only hear most cases after they have been decided by lower courts and often defers to the elected branches of government by limiting the types of cases the judicial branch can even consider through legal principles such as standing (only an injured party with a redressable claim against the defendant can file action in court), the political question doctrine (fundamentally political matters are non-justiciable), and others, and will not exercise judicial review over matters which Congress or the President enjoy plenary power (the exclusive authority to act in a matter), none of these principles have formally been adopted in Israel, and its Supreme Court is a court of original jurisdiction for anyone wishing to challenge governmental decisions.

Third, Israel’s Supreme Court has the authority to apply a reasonableness test to invalidate certain administrative decisions and appointments made by the government or by governmental agencies which it finds “extremely unreasonable.” This ability, derived from British common law, has been subject to criticism by many who object to the subjective nature of a few judges determining whether a decision reached by a democratically elected government is reasonable. Levin’s pending reforms would do away with the reasonableness test and return control over such matters to the electorate. Given the numerous laws that the Court can use to protect the populace and prevent the government from making discriminatory or otherwise illegal decisions, fears that the mere elimination of the reasonableness test would give the government unfettered power are unfounded.

Fourth, in May 2021, the Supreme Court determined that it even has the ability to invalidate quasi-constitutional Basic Laws. The Court found that only certain Basic Laws which have constitutional characteristics enjoy constitutional status and, thus, not all of them are immune from judicial review. Levin’s reforms would effectively tell the Court that it can’t have it both ways. If the Basic Laws essentially constitute a constitution which grants the Supreme Court the power of judicial review, as the Court itself has determined, then all the Basic Laws must be immune from judicial review.

Fifth, as it stands, a simple majority of Supreme Court justices sitting on a panel of any number of justices can exercise judicial review over legislation. Levin’s proposal would compel all 15 justices to adjudicate an appeal challenging the constitutionality of a statute and require the votes of twelve justices to invalidate any piece of legislation. While necessitating a four-fifths majority of the Court to nullify a statute is arguably excessive, requiring all 15 justices to hear such cases and a supermajority of them to override the will of the people certainly goes a long way towards preventing judicial overreach and enhancing the public’s faith in the judiciary.

Yet, while Levin’s proposed reforms aim to rework the system by restoring a balance of power between the branches of government and preventing judicial overreach, they cannot be so drastic as to place too much authority in the hands of the legislature. Levin’s proposed Override Clause by which the Knesset would have the power to overturn Supreme Court decisions invalidating legislation with a bare 61 vote majority in the 120 member Knesset goes too far. The same majority that enacts a law deemed unconstitutional by the Supreme Court should not have the ability to reenact it.

Also, the reforms must make it much more difficult for the Knesset to amend or enact Basic Laws to begin with and prevent the Knesset from engaging in legislative ping-pong by changing the rules of the game every time a new government is sworn in. Any amendment of the Basic Laws should require a supermajority spanning the breadth of the political system (in other words, more than a bare majority of 61). Likewise, the same supermajority should be necessary to overturn any Supreme Court decision.

Nonetheless, even if the proposed Override Clause is passed in its current form, Israel would be no less democratic than Canada which has a similar clause built into its legal system, and certainly no worse than the Netherlands, Switzerland, New Zealand, Sweden, Finland, or Norway which do not allow their respective supreme courts to exercise judicial review at all.

Eulogizing Israel’s democracy in light of the proposed reforms is an extreme overreaction. Reforms that successfully impose an effective system of checks and balances will only serve to strengthen Israel’s democracy, not weaken it.  Much like how the Lochnerism controversy in the United States was resolved through a healthy system of checks and balances, empowering the elected branches of the Israeli government to have more control over its judiciary will only serve to reinforce the electorate’s trust in the Court’s use of judicial review.

To achieve the best possible outcome, both sides of this debate will need to moderate. The Supreme Court cannot have unrequited power to invalidate Knesset legislation without a legislative check on its abilities, and, likewise, the Knesset cannot have the unrequited power to legislate without a judicial check on its abilities. Yes, judicial reforms are badly needed, but going from one extreme to the other is not the solution. Both sides must realize the importance of both judicial review that adequately protects the rights of minorities and a proper separation of power that preserves the voice of the majority through the democratically elected Knesset and government.

About the Author
The writer worked as a foreign law clerk for the Deputy Chief Justice of the Supreme Court of Israel and is now an attorney based in Chicago and New York.
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