For nearly five years, I taught English language and American culture in Jerusalem. One work I featured regularly was an illustrated essay by Maira Kalman, “E Pluribus Unum,” which means “Out of Many, One”—and which happens to be the motto of the United States of America. One of the main themes of the essay, in Kalman’s words, is that “the system is supposed to be cumbersome. Not subject to the whim of the moment.” Democracy in the modern world is meant to make governing hard.
One of the main complaints of the current governing coalition, and one of its core motivations for weakening the judiciary, is that the Supreme Court, in their words, is making it difficult for the government to govern. But, in a democracy, governing is not supposed to be easy. In the United States, the legislative branch has two separate chambers—one of which, the House of Representatives, is determined by the growth of the population. In Israel, 75 years after its establishment, the Knesset is still split across 120 members—despite the fact that the country’s population has grown more than tenfold. In 1948, each seat in parliament represented about 6,666 citizens. Now, it represents nearly 77,500 citizens. This means that each citizen’s vote counts for less than a tenth than it once did. If anything needs reform, it’s not the judiciary, but the system of representation.
Yariv Levin, of course, knows this. He also knows that Israel’s democracy has built-in weaknesses that he can exploit. He said so himself: “There is no properly constituted Western democracy in which judges select themselves.” As he attempts to obfuscate and oversimplify the process of selecting judges, he also reveals a core problem with Israel’s democratic system: it was never properly constituted. The issue at the center of Israel’s democracy is its lack of constitution. If the governing coalition wanted to improve Israel’s democratic character, this would be its main preoccupation. But, in reality, this is far from being their goal. They focus on weakening the justice system because, in Israel’s unconstituted democracy, it remains an independent branch of government.
As much as Levin, Simcha Rothman, and Benjamin Netanyahu would like us to believe otherwise, the fact is that in a three-branched democracy, the judiciary is a branch of government—which is to say that, by definition, it has governmental power. It cannot be considered as an impediment to governing because it makes up a third of the government. So what the governing coalition—not the government—is saying is that their branch doesn’t like what the other branch is doing. That’s why, instead of compromising and finding a way to work with other branches of the government, it aims to weaken them and bring them under its control.
Here, too, Levin tries to execute a rather shameless sleight of hand where our understanding of democracy is concerned. In Israel, unlike in the United States, the Prime Minister is a member of parliament, which means he is part of both the legislative branch and the executive branch. In essence, Israel’s governing head already controls two governmental branches. Bringing the judiciary under the influence of the coalition would, in essence, put all three branches of government under the control of one person. You can call this what you want, but it is not modern democracy.
In response to my last piece on explaining modern democracy to a three-year-old, someone wrote, “I taught my kids about democracy: I had them vote for which pizza place they wanted to go to, and then I took them to my favorite place because I have the money.” But no one’s household actually works as a direct democracy. If this person’s kids had voted not for their favorite pizza place, but, say, to empty the bank account and make all decisions for the parents going forward, I doubt they would follow suit. They would likely, as members of the supreme court of their household judge this to be a breach of its internal contract—its implicit constitution—and tell their kids that they have to come up with some other ideas about how family decisions will be made.
Many people are trying to frame our national crisis as a battle between right-wing and left-wing politics. In reality, the crisis is rooted in our misconceptions about what constitutes modern democracy in the first place. For too long we have focused on those parts of democracy that makes us feel empowered—particularly majority rule—whereas, in reality, every modern democracy depends on the independence of its branches to shield its citizens from concentrated power to enact laws.
This is what the current judicial coup is really all about. The coalition represents the Supreme Court as all-powerful, but the fact is that its judges cannot author or pass laws. They can only evaluate them—and make governing just cumbersome enough to ensure that no coalition, either of the right or the left, can do as it pleases.
The enemy of democracy is not judicial review. It’s the concentration of power. Yet making the judiciary look like a tyrant is convenient for Levin, Rothman, and also for Netanyahu, who is the head of the undemocratic camp that exploited democracy to be elected to the Knesset. A panel of judges, like the selection panel that chooses those judges, can never compete with the influence of a single man who has made every choice focused on remaining in power and concentrating it within his realm.