The Israeli Supreme Court used the cover of war to seize power to overturn constitutional amendments, even to its own legal powers, without any democratic authority to do so, and before two judicial retirements would have made such an audacious move impossible.
That is one way to look at Monday’s decision by the Court to overturn the first and most widely-accepted of Prime Minister Benjamin Netanyahu’s judicial reforms, which barred judges from invalidating laws or policies on the basis of the judges’ personal opinions of what is “reasonable” — a power unmatched in any democratic country.
Another way to look at the Court’s decision is that reason prevailed, and that the runaway power of a temporary majority in the legislature to make sweeping changes to the country and to individual liberties without obtaining broader consensus was stopped.
Both of these interpretations are reasonable, and reflect the political divisions in Israel — divisions that the war has suppressed, but not healed.
Though the media celebrated the Court’s decision as a resounding victory for the opposition, the reality is that the Court itself was also closely divided, 8-7, on the judicial reform legislation — though a far more lopsided majority, 12-3, agreed that the Court has the power to adjudicate changes to the country’s constitutional rules, effectively making the judiciary supreme.
This is Israel’s “second constitutional revolution,” following the first such revolution, openly declared as such in the 1990s by then-Chief Justice Aharon Barak, who simply seized the power of judicial review of legislation. So, too, did U.S. Chief Justice John Marshall, in Marbury v. Madison (1803), though that was over 200 years ago, when democracy was new and institutions weak.
In fact, former attorney general Avichai Mandelblit, who became a key figure in the dubious prosecution of Netanyahu on flimsy charges of corruption, explicitly praised what he called the country’s “second legal revolution.” The Times of Israel reported Tuesday:
“I want to congratulate my friends Yariv Levin and Simcha Rothman. If Aharon Barak is the father of the first legal revolution – they should receive the title of the fathers of the second legal revolution,” Mandelblit tells Army Radio in a dig at the two conservative politicians who pushed for the legislation at the heart of the case.
Justice Minister Yariv Levin and Constitution, Law and Justice Committee chairman Rothman are two of the primary architects behind the government’s efforts to restrict the court’s powers of judicial review and impose greater political control over the judiciary, notably including over the appointment of judges.
Mandelblit suggested that by trying to restrict the powers of the judiciary, Netanyahu’s government had in fact expanded it. In reality, however, the justices themselves expanded it, in taking up a case brought by a left-wing group, the Movement for Quality Government, that not only pursues a left-wing agenda but is also partially funded by the U.S. State Department.
Thus, Israel’s “second constitutional revolution” is not just a seizure of power by judges, but a foreign-backed one at that, which underlines the undemocratic nature of the change. (Supporters would say the judges preserved the character of Israeli democracy, as described in the country’s Declaration of Independence, though that was not intended as a constitutional document.)
Israel could now fairly be called a “juristocracy,” a country ruled by judges, though there are elections and a government that is in charge of day-to-day functions. In defending democracy, the justices seized power in the most undemocratic way imaginable. And in doing so, they also vindicated critics of the Israeli judiciary who said that judges, and lawyers, enjoyed far too much power.
And yet despite the fact that the Court’s ruling is absurd, and even dangerous, it may have been right about one thing: no country can withstand fundamental changes pushed by a temporary, small majority in the face of small opposition.
Democrats in the U.S., some of whom have been critical of Netanyahu’s reforms, backed Obamacare (2010) and the so-called Inflation Reduction Act (2022), two major pieces of legislation that aimed to radically overturn American life and were passed on strictly party-line votes.
The court was wrong to intervene, but the threshold of a simple majority to amend Israel’s quasi-constitutional Basic Laws is also far too weak (though, in Netanyahu’s defense, it was the law at the time he began passing his judicial reforms). An 8-7 split ruling suggests that enough justices, even in a liberal judiciary, understand the need for judicial reform.
When the dust settles, Israelis need to create a process to find a national consensus, if not an actual constitution, about the judiciary and other unresolved issues.
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 2021 e-book, “The Zionist Conspiracy (and how to join it),” now updated with a new foreword. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.