The Netanyahu administration’s proposal to constrict the Israeli judiciary is fueled by two major delusions. The first is that Israeli judicial review of governmental conduct has operated as a form of abusive judicial tyranny – judges arbitrarily asserting power to limit the conduct of an elected Knesset and its administrative agencies. The contention is that Israel’s highest court (Bagatz) and its jurisprudence have run roughshod over governmental entities in an unprincipled, politically motivated fashion. The second delusion is that governmental conduct is per se democratic so long as it flows from an elected body like the Knesset or elected ministers. Both premises are glaring misapprehensions.
Let’s start with the notion that governmental conduct is democratic so long as carried out by duly elected representatives. The United States has long served as the model for democratic governance. To preclude autocratic rule, even by an elected Congress, the 1789 Constitution established a system of check and balances. And in 1803, in Marbury v. Madison, the U.S. Supreme Court recognized that even though the written Constitution did not mention judicial review of congressional acts, judicial review is essential to circumscribe excesses by elected representatives. Judicial review by an independent judiciary has remained a fixture of American democracy and has been established as an integral element in numerous other nations aspiring to democracy. The machinery of democracy depends on channels of political communication, and courts have a duty to keep those channels open. A fundamental principle of western democracy then is that an independent judiciary must safeguard certain fundamental values like free speech and assembly in order to ensure fair elections and an informed electorate. If you don’t believe me, consider Benjamin Netanyahu’s video of Feb. 28, 2012, extolling the importance of a strong and independent judiciary in upholding democracy. Video-2023-01-14-17-11-09.mp4. And note how authoritarian regimes like Turkey and Hungary — despite a veneer of democratic elections — exploit judicial weakness and suppress dissent.
A further delusion behind the current administration’s “reform” movement is that Israel’s brand of judicial review has been unprincipled, arbitrary, and unlimited in scope – a form of judicial tyranny. While Bagatz has on relatively rare occasions intervened to curb governmental entities, including the Knesset, it has primarily invoked venerable jurisprudential principles. While Israel has no written constitution, it does have well-established sources of fundamental governance principles. The most critical element of Israeli jurisprudence is lodged in the “basic laws” adopted by the Knesset itself. Most prominent of these is the 1992 Basic Law: Human Dignity and Liberty. That 1992 basic law on its face protects human dignity and liberty consistent with the established values of Israel as a Jewish and democratic state. That provision has been used sensibly by Bagatz on several occasions to constrain Knesset legislation. Another major guiding source is Israel’s 1948 declaration of independence explicitly assuring to all inhabitants equal political and religious freedoms. Accordingly, equality before the law, without invidious distinctions of ethnicity, religion, or gender, has been a key guideline of judicial review.
The fundamental jurisprudential principles underlying Israeli judicial review are thus not arbitrary whims of judges. As in the United States, where imprecise constitutional principles like “liberty,” “property,” and “equal protection” of the laws have to be given judicial substance over time, the determinant guideline is “traditions and collective conscience” of the people rather than personal judicial preference. In Israel, the relevant tradition and collective conscience are drawn from Israel’s history and experience as well as the experience of other democratic regimes.
The notion that judicial review constitutes “tyranny” of the judiciary is unconvincing. In Israel, the basic laws that form a principle source of judicial review are themselves the creation of an elected Knesset. If the Knesset deems a Bagatz interpretation of a basic law to be arbitrary, the Knesset can presumably alter or amend the basic law via the requisite legislative process. Moreover, Bagatz judges, like judges in other democracies, are entirely dependent on public acceptance of their decrees and/or enforcement by the executive branch of government. Judges wield no weapons or militia. Seventy-eight year old Esther Hayut is not a very intimidating figure if she sets out to implement a Bagatz ruling, even if accompanied by 10 of her judicial colleagues. That’s why constitutional scholar Alexander Bickel labeled the judiciary “the least dangerous branch” within a tripartite structure of government.
The contention that judicial review in Israel exceeds the norms for a system of parliamentary sovereignty (absent a written constitution) is also misplaced. True, British courts have no traditional power to invalidate an act of prime legislation by the British parliament. Yet Great Britain in fact has had, and still has, a variety of means of judicial review of governmental conduct. Since 1998, Britain has had in place a Human Rights Act which allows judges to exercise judicial control over governmental abuse of individual liberties. Up until Brexit, the British parliament’s conduct could also be judicially reviewed and struck down pursuant to the European Convention on Human Rights. Most importantly, British secondary legislation, meaning regulations and policies adopted by executive branch officials, were and are subject to judicial review in England. And it bears repeating that Bagatz has not vitiated parliamentary sovereignty by applying Basic Law: Dignity and Liberty to constrain governmental conduct. The Knesset is still able to amend or alter the Basic Law if it sees fit.
Yariv Levin’s rush to repress the Israeli judiciary is indeed disturbing. Pro-Israel stalwarts like Alan Dershowitz, Bret Stephens, and Jerry Nadler have appropriately sounded the alarm. So have some traditional organizational supporters like the American Jewish Committee. Dershowitz points out that dilution of judicial review weakens Israel’s resistance to petitions lodged against Israeli officials in international tribunals like the ICJ. The myths about Israeli judicial tyranny discussed above cannot warrant the prospective harms to Israel from debilitation of its judiciary. There may be room for reform, particularly in the method for selecting judges, but not for the sweeping version of reform being pushed by Yariv Levin and his cohorts.