As protests and “days of resistance” continue to consume the streets of Israel, the coalition’s commitment to weakening the powers of the judiciary remains strong. One of the main arguments against undermining the status of the Supreme Court is that, in Israel, the government enjoys outsized power, and the Court is among the only actors able to provide checks and balances.
Indeed, other democratic states have extensive restrictions on governmental power that simply do not exist in Israel (as has been demonstrated by, for example, Prof. Amichai Cohen). Without the Supreme Court, the Israeli government would be able to act as it wishes, even if it means infringing on human and civil rights. Many would say this provides a strong reason to oppose the override clause, the proposed amendments to the judicial selection procedure, and the cancelation of the reasonableness doctrine.
The issue, however, goes much deeper. Even if these initiatives are ultimately halted, we need to take the argument a step further. Governmental powers in Israel should be decentralized, drawing on widely accepted mechanisms from other democracies. This could include, for example, moving to a more regional electoral system, allowing for a broader variation of interests even among representatives of the governing party; adding an upper chamber to the Knesset; granting additional powers to the president, such as the power to delay legislation; and significantly strengthening local government, or even shifting to a federal system of government.
Such systemic changes would add veto points to the legislative process, ensuring that the Supreme Court is not the only institution capable of blocking problematic legislation. Let us consider a law that is not part of the government’s judicial reforms: the law that confiscates pension funds saved by labor migrants who do not leave Israel before their visas expire. Regardless of whether we agree or disagree with the law, it is difficult to deny the severe harm it brings to the property rights of a highly vulnerable population group. Indeed, the Supreme Court recently ruled that the law is disproportionate, and thus must be amended by the Knesset.
But if the president of Israel had the power to delay or veto legislation, he might have used such power in this case. The same is true of an upper chamber of parliament whose approval is required for legislation to be passed. And if Israel had strong sub-national units (such as elected regional government or stronger local government), then the influence of the central government would be limited in such taxation rules. It is probable that Tel Aviv, for example, would adopt a more progressive taxation policy regarding labor migrants. Furthermore, holding regional and individual Knesset elections could affect the interests of certain Likud Members of Knesset, such as those elected to represent more liberal areas, pressuring their party to act more moderately.
By decentralizing the veto points, we can be all but certain that many problematic laws would be halted or face significant changes before they would ever arrive at the Supreme Court. In addition to reducing the load borne by Supreme Court justices, decentralization could reduce the public and political criticism of judicial activism, spreading it out among the various points of veto. Thus, instead of criticizing the Supreme Court’s intervention in the case of withholding labor migrants’ pensions, the law’s supporters would instead direct their ire toward the Members of Knesset who opposed the law, the upper chamber or president who vetoed it, or the sub-national units that refuse to cooperate with it.
From a broader perspective, empirical studies show that having multiple veto points helps the struggle against “democratic retreat” and against populist regimes. The reason is obvious: When populists want to change laws in order to take control of institutions, harm minority rights, or curb the opposition, then multiple veto points pose more barriers to be overcome.
But there is another issue here. When Israeli liberals depend solely on the Supreme Court for checks and balances, they are taking a big risk. Like any other institution, the Court can change, and could come to adopt non-liberal values. The most glaring example is, of course, the US Supreme Court, which in 1973 (in Roe v. Wade) affirmed the right of women to an abortion, and then in 2022 overturned this ruling. Americans are lucky to live under a federal government, which means that in many states, abortion has remained a protected legal or constitutional right.
In Israel, however, should the “fortress fall” and the Court approve legislation that harms fundamental rights, then there will be no other institutions to defend us. It is therefore essential to add such veto points. The defenders of civil and human rights in Israel should not depend on the Supreme Court alone—decentralization of the Israeli government is key.