Israel’s Supreme Court debate: What are the facts behind the friction?

Israeli Supreme Court building in Jerusalem. Credit: Israel Tourism via Wikimedia Commons.

by Jerome Marcus

(JNS) — Writing in the Tablet on Feb. 22, an Israeli scholar of the American political system claims that the proposed judicial reforms in Israel should disturb American conservatives. Why? Because, says Professor Yoav Fromer, they’re really just a replay of FDR’s court-packing plan.

Clearly learned in American political thought and history, Fromer, who chairs Tel Aviv University’s Center for the Study of the United States, invokes Alexis de Tocqueville and the Federalist Papers on the virtues of judicial review and judicial independence. The claim is that the reforms will make the Israeli Supreme Court march to the dictates of a tyrannical majority.

The argument is wrong but revealing. It’s wrong because it ignores a great deal about both the proposal on the table, as well as the crucial differences between Israel’s system and the United States. But Fromer’s article accidentally reveals a great deal about whose interests are really at stake.

Let’s start with the facts — the ones ignored in Fromer’s article, which render useless his comparisons between Israel and America. For one thing, FDR’s court-packing proposal was to add seats to the Supreme Court that Roosevelt would immediately fill, thereby transforming the court’s political makeup in one fell swoop.

The current judicial reform does nothing of the kind. It proposes adding no seats to the court. So it would not enable Israeli Prime Minister Benjamin Netanyahu to add even a single justice to the court right now.

Instead, in another fact Fromer overlooks, the proposal takes control over appointments away from private lawyers and sitting judges, and gives more of it — not all, but more — to democratically elected officials. Can you imagine what the United States would look like if the leaders of the American Bar, such as the heads of Wall Street law firms, held two of nine votes on appointments to the Supreme Court? Or if three more of those votes came from the court itself? Ending such a non-democratic regime is hardly the first step on the road to serfdom.

But the most important fact Fromer ignores in his song of praise to U.S. judicial review is that in America, we have a written Constitution. That document constrains judges and allows them to strike down the will of Congress and the president only when the laws stating that will are themselves illegal because they contravene another, higher, written, democratically adopted law — the United States Constitution itself.

Israel has no written constitution. Instead, its Supreme Court is a law unto itself. It strikes down whatever it wants, whenever it wants, when it thinks that the government chosen by the voters has done something that a majority of justices feel is “unreasonable.” While Fromer worries about Israel’s “fragile” Basic Law, which come as close as Israel has to a Constitution, he ignores the fact that one of the things making those laws so fragile is that the Supreme Court has granted itself the power to strike down such laws. In Israel, you see, the constitution can be unconstitutional if the justices say so because they think it’s unreasonable. And the justices who do that, recall, are the ones chosen by the private bar’s leaders and the sitting justices, who, of course, choose as successors the people they agree with.

None of this makes any sense, and once one understands that this is the system being reformed, no serious person can deny that reform is needed. That’s why Israel’s President Isaac Herzog., the former leader of the Labor Party, and Natan Sharansky, who knows a thing or two about real fascism, both support reform. Both want Israel’s fractious political parties to negotiate on a compromise bill that fixes these problems and can be supported by a wide majority. The Likud Party leaders pressing for reform, such as Simcha Rothman, have been trying for weeks to conduct such negotiations. But Yair Lapid is in the streets of Tel Aviv, handing out Israeli flags paid for by American liberals through the New Israel Fund, opposing negotiation unless the government first agrees to stop governing, and calling for violent revolution.

Despite the crucial facts it ignores, Fromer’s Tablet article is revealing for its description of the interests he perceives to be threatened by the reform he opposes. Minority rights are at stake, he claims. Who are minorities? Helpfully, he names the ones he cares about: “Palestinians, Arab Israelis, women, LGBTQ people, and even secular Israelis.”

These are, one might notice, the people who vote left — except, of course, for Palestinians. They are not citizens of Israel or inhabitants of Israeli territory. But they are a group favored by the left. (That, by the way, is why the left is out of power — because a clear majority of Israeli voters realized long ago that their government cannot be committed to advancing the interests of people whose leadership is universally pledged to the destruction of the Jewish state.)

Yet these are the constituencies — and the only constituencies — whose interests have been advanced by the secular elite that seized control of Israel’s government through the self-proclaimed “revolution” of Chief Justice Aharon Barak decades ago. It was Barak who invented the idea that a court can strike down laws that are “unreasonable,” and who anointed himself and his judicial colleagues as the final arbiter of what “reasonable” means.

And yet. In Israel, the haredim are a minority. Religious Zionists are a minority. The Israelis who live near Arab Palestinian communities that shelter terrorists — such as the group of murderers who call themselves “the Lion’s Den,” which has been killing Jews all over the country for the last several months — they’re a minority too. Professor Fromer isn’t worried about them, and neither was Aharon Barak nor his colleagues or the people they chose to succeed themselves in the wielding of the great powers that Barak seized.

For that matter, combat soldiers are a minority in Israel. Yet the Supreme Court long ago conferred upon itself the right to overrule the soldiers’ commanding officers on when and how those soldiers could use force to defend themselves and their fellow citizens, thereby grasping a degree of unchecked power held by no other court in the civilized world. That minority is also not of much interest to Fromer.

For an unelected body to wield power over all of these people, dictating to them solely on the basis of what these self-selected Solons think is “reasonable,” is simply and utterly intolerable. Indeed, it’s totally indefensible. Which may be why even an article that attacks judicial reform doesn’t actually defend the system that will be left in place if reform fails.

Is the Likud proposal perfect? Perhaps not. But it behooves serious people, learned scholars who know about law and history, to engage seriously with the real issues and thereby to help bring Israel’s voters to real solutions. Making things up about court-packing and singing about judicial review when there’s no written constitution are no substitute for careful thought or serious argument.

Jerome M. Marcus is a lawyer and a fellow at the Kohelet Policy Forum in Jerusalem.