Some of Israel’s ‘Radical’ Judicial Reforms Parallel Existing Law in the U.S.

Israeli Prime Minister Benjamin Netanyahu’s new government unveiled a set of judicial reforms last week that have drawn international criticism and prompted the domestic opposition to warn that democracy is at stake.

But some of these reforms parallel many existing practices and procedures in the United States, and supporters of the effort say they are necessary to rein in an activist court that has become a threat to majority rule.

The reforms, unveiled by Israel’s justice minister, Yariv Levin, consist of four basic legislative components:

1. Restricting the power of judicial review by requiring a full panel of Israel’s 15-member Supreme Court to strike down legislation passed by the elected legislature, or Knesset;
2. Allowing the Knesset to override a decision by the Supreme Court to strike down legislation by letting it pass the same legislation again;
3. Removing the power to select judges from an independent commission and giving it to the government;
4. Allowing government agencies to appoint their own legal advisers instead of relying on the justice ministry to do so.

Many of these reforms already exist under the U.S. Constitution. Judicial review of congressional legislation, for example, is not an unlimited power, and Congress can “override” Supreme Court decisions by amending the Constitution. (Israel does not have a formal constitution; instead, it relies on a set of “Basic Laws.”)

Likewise, judicial appointments in the U.S. are entirely controlled by the government — the president and the Senate.

Netanyahu’s conservative government supports these judicial reforms after decades in which Israel’s judiciary has struck down Knesset legislation on religious matters and micromanaged national security decisions.

The fact that the police and prosecutors have also relentlessly pursued flimsy charges of corruption against Netanyahu for several years has also undermined the legitimacy of Israel’s legal establishment for many voters.

The Israeli left has described the reforms as a threat to “democracy,” though the judiciary has in fact been a counter-majoritarian force, upholding liberal values that often represent an urbane minority, not the majority.

A more precise description of their criticisms would be that the reforms are a threat to liberalism in the classical sense, in which a system of rights and constraints keeps the majoritarian power of the legislature in check.

Supporters of the reforms counter that the new proposals preserve judicial independence but restore a healthier balance between the branches of government, restoring power to democratically-elected representatives.

Some critics of the reforms, such as civil libertarian Alan Dershowitz — normally a staunch defender of Israel — said that the changes “will make it much more difficult for people like me who try to defend Israel in the international court of public opinion to defend them effectively” by making Israel’s legal system less liberal, though he stressed that the reforms “are designed to improve democracy, majority rule,” not to hurt democracy.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.