Judicial Reform
The Judicial Revolution: A Guide
Israel is in the midst of a constitutional crisis around the role of the Supreme Court. Hundreds of thousands are taking to the streets in protest; the government is recklessly pushing forward a set of reforms dangerous to democracy. The President of Israel has warned of civil war. Fighter pilots have refused their reserve duty in protest. At the same time, 78% of Israelis support some judicial reform, meaning there is something that ought to have broad public support. So what is going on?
Beginning in the 1990s, the Supreme Court became significantly more powerful. The Court arrogated to itself the power to review any legislation, even without an actual case. They permitted anyone to sue the State to challenge legislation even when that individual lacked standing. Further, the Court in the late 90s began treating laws termed “Basic Laws” as a quasi constitutional basis to overturn Knesset legislation even though the laws were passed by a simple majority. As few as three Justices can void a Knesset law. Further, the Court controls the selection of its members.
As a result, the Court was more and more viewed as representing a certain left leaning Ashkenazi view preserving a status quo of liberalism that was particularly objectionable to the Religious and Mizrachi communities. This let Netanyahu use the Court as a wedge issue in the last campaign.
Elements of this reform will walk back these Court powers. The Court will need all fifteen justices to overturn a Knesset law. Cases will have to have standing (meaning a harmed individual has to bring a legal case) to come before the Court. Finally, the selection of Justices will be controlled by the Knesset. Where the reforms go too far is in allowing the Knesset to overturn a Court ruling by a simple majority and allowing the Knesset to write laws immune from Judicial oversite for the term of the current Knesset plus one year. In addition, the selection of Justices becomes controlled by the governing coalition.
President Herzog proposed a compromise position. His reform would make Judicial selection a broad based committee including members of the opposition. It would allow 11 justices rather than all 15 to overturn Knesset legislation. And it would make the Basic Laws a quasi Constitution by requiring an 80 vote majority of the 120 Knesset seats to pass them. Herzog’s reforms have broad public support, but Netanyahu quickly rejected them. I read in Ynetnews that his Justice minister threatened to leave the coalition if Netanyahu accepted Herzog’s proposals.
One element missing is giving the Knesset the power to overturn a Court ruling. I believe the compromise that can and must happen is to include that in the legislation but to require a supermajority of 80 votes so that no coalition can overturn the Court without significant help from the opposition. I would prefer the Court not be subject to override. Yet in the absence of a Constitution, I believe such a clause, which would be almost impossible to ever use, would confer a greater legitimacy on the Court and probably be supported by around 80% of Israelis.
At this point, Netanyahu has created an ungovernable mess. Three Likud members of the Knesset have signaled their discomfort with the proposed legislation. If two more jump ship the government will fall. At the same time, if he pulls or even compromises on the legislation, he may lose other coalition members, at which point the government will fall.
This legislation continues to advance, sowing havoc in its wake. In its current form, it would be a body blow to Israeli democracy that would create untold legal and social damage. It is time for a pause and a compromise.
May God protect the State of Israel and its democratic institutions.
Shabbat Shalom-
Rabbi David Booth
