Steve wrote earlier today about proposed legislation in Israel that would rein in that country’s Supreme Court. As Steve points out, the hypocrisy of the Left on this issue is monumental.
I want to talk specifically about the legislation that passed the Knesset today. First, though, it is important to understand that Israel does not have a written Constitution. Thus there is no foundational document that sets out the Court’s powers. And those powers, as they have developed, are extraordinarily anti-democratic. Today’s legislation took away the Supreme Court’s power to veto or negate any legislation that it considers “unreasonable,” in effect an oligarchic prerogative. As the Jerusalem Post wrote:
What it will do, if passed, is bar the Supreme Court from striking down government decisions it deems “unreasonable.”
That the Court has ever wielded this power is astonishing. That thousands have taken to the streets to protest Netanyahu’s “undemocratic” reforms is ridiculous. Liberal protesters like the fact that the traditionally left-wing Supreme Court used elite presumptions to frustrate actual Israeli democracy.
As for the broader issues relating to the Israeli Supreme Court’s extraordinary powers and the Netanyahu government’s efforts to rein them in, this article by Elliot Abrams for the Council on Foreign Relations is a good primer.
The key figure in Israel’s “constitutional revolution” that expanded the role of its Supreme Court is Aharon Barak, who served as a member of the court from 1978 to 1995 and as its president from 1995 to 2006. While on the court, Barak wrote that
The judge of a supreme court is not a mirror. He is an artist, creating the picture with his or her own hands. He is “legislating”—engaging in “judicial legislation.” Judicial creativity—judicial legislation—is natural to law itself. Law without discretion is a body without a spirit. Judicial creativity is part of legal existence. Such creativity—“judicial lawmaking”—is the task of a supreme court.
No one in America, not even the most fervent liberal, would say such a thing out loud, although it probably sums up the views of most Democrats pretty well. Assuming, of course, that their party controls the Court.
The manner in which Israel’s Supreme Court is currently chosen is frankly elitist:
Among other proposals, the coalition seeks to change the way judges are appointed, reducing or eliminating the current role of the bar association and of current Supreme Court judges and increasing that of elected officials.
Currently, Supreme Court justices are named by a committee that includes sitting justices and members of the reliably liberal Israeli bar association. This, too, is obviously undemocratic. Steve properly asks whether American liberals would approve of a system in which John Roberts, Clarence Thomas, Sam Alito, Neil Gorsuch, Brett Kavanaugh and Amy Barrett have the power to name their successors on the Court. Obviously not.
It might be that one or more of the Israeli government’s other reform proposals go too far. But compromise has proved impossible, so the package is coming up for Knesset votes on a piecemeal basis. At a minimum, the Knesset should reform the manner in which justices are selected, along with today’s revocation of the “reasonableness” standard.
To me, the most remarkable aspect of the current controversy is that fact that so many Israelis have demonstrated against reforms that are obviously needed and that will further Israeli democracy. Thousands of reservists have even threatened not to serve if the reforms go forward. Granted, Israel’s democracy is notoriously fractious, but these positions seem extreme beyond the bounds one could rationally expect.
In Israel, Prime Minister Netanyahu arouses pretty much the same insane hatred on the Left as our own Donald Trump–although, to be fair, with much less cause. I suspect that the primary basis for opposition to these reforms is the fact that Netanyahu favors them. I suppose it was foolish of me to expect something better from Israelis.
ONE MORE THING: In a brazen interference in another country’s domestic politics, Joe Biden publicly urged Netanyahu not to proceed with judicial reforms, thus allying himself with Israel’s anti-democratic Left. It was a shameful gesture that Netanyahu happily ignored.
Notice: All comments are subject to moderation. Our comments are intended to be a forum for civil discourse bearing on the subject under discussion. Commenters who stray beyond the bounds of civility or employ what we deem gratuitous vulgarity in a comment — including, but not limited to, “s***,” “f***,” “a*******,” or one of their many variants — will be banned without further notice in the sole discretion of the site moderator.