This is the first in a three-part series. See parts two and three.
The United States and Israel have more in common than shared Judeo-Christian values and democratic government. Both face a constitutional crisis in which the legal profession is attempting to control popular access to political power.
I leave on Labor Day for a visit to Israel and the United Arab Emirates with Canada’s Rebel TV, whose founder, Ezra Levant, was kind enough to invite me along. I always love visiting Israel, and I have wanted to visit the UAE since the Abraham Accords were signed in 2020, launching an era of friendship between Israel and a crucial Arab state.
But this visit seems even more important, because of the ongoing, parallel crises facing both Israel and the U.S.
Israel is on the verge of a confrontation between its judicial and legislative branches. Prime Minister Benjamin Netanyahu, elected with a right-wing coalition last year, has set about reforming the country’s judiciary, which amassed unprecedented power in recent decades.
In July, his government passed the first of his proposed reforms, which prevents judges from striking down laws they think are not “reasonable,” even if they are otherwise lawful.
A left-wing group, the Movement for Quality Government (which is partly funded by the U.S. State Department), filed a petition with the Supreme Court asking it to strike down the new reform, even though the reform has been incorporated into Israel’s “Basic Laws” — a set of fundamental laws, in the absence of formal, written constitution. In effect, the Court will rule on whether a constitutional amendment is constitutional, with its own power at stake.
The Court will hear that challenge this month. It will also hear a case brought by Attorney General Gali Baharav-Miara — a holdover from the previous government — that will challenge another Basic Law that Netanyahu has passed. That Law prevents the Court from ordering the Prime Minister to step down. It was passed, quite obviously, to protect Netanyahu, who faces dubious charges of corruption. But it also limits the court’s extraordinary power.
It is not clear what will happen if the Court tries to strike down these Basic Laws. Netanyahu has already said that the judiciary lacks the power to do so. But because Israel, like the United Kingdom, has no written constitution, it may be an open question.
Other democracies have allowed their high courts to overrule constitutional changes — though these are usually situations in which the judiciary is seen as legitimate by all sides, which Israel’s is not.
Israel’s judiciary has been controlled, more or less, by the political left and the cultural elite, who have used the courts to protect their prerogatives against an increasingly conservative legislature.
The Israeli legal scholar Ran Hirschl coined the term “juristocracy” two decades ago to describe the phenomenon. Netanyahu’s opponents say they are defending “democracy,” but what they are really defending is a set of liberal ideas, against democracy.
That is not to say the opposition is wrong; at least one of Netanyahu’s proposed reforms, which would allow the legislature to overturn Supreme Court decisions with a simple majority vote, could end judicial independence.
But instead of simply making their case to the public, Israel’s opposition has decided to shut the country down. It has shut down roads; it has harassed legislators in their homes; it has even encouraged military reservists to desert.
The U.S. faces a similar challenge from its legal and judicial institutions, which have been abused — first to spy on President Donald Trump’s campaign; then to vex his administration with empty investigations and impeachments; and now to prosecute him for a series of petty, or even invented, crimes.
Meanwhile, those same institutions have done everything, including censoring the mass media, to protect President Joe Biden and his family from scrutiny.
Those involved in this effort profess, as their Israeli counterparts do, that they are defending democracy from what they describe as a would-be authoritarian ruler. In the process, however, they have destroyed public faith in the rule of law, and threatened cherished rights and freedoms many Americans would describe as the essence of democracy.
Ironically, as the American left turns to the power of prosecution to suppress its opponents, it is trying to enact radical judicial reforms to reduce the power of the conservative U.S. Supreme Court. Many of the leaders of this effort simultaneously oppose Netanyahu’s own judicial reforms, without any self-awareness of their own hypocrisy.
But the question is not, fundamentally, about courts. It is about lawyers.
Alexis de Tocqueville wrote in Democracy in America that lawyers formed a natural aristocracy that could tame the populist excesses of the electorate. He also warned: “In a state of society in which the members of the legal profession cannot hold that rank in the political world which they enjoy in private life, we may rest assured that they will be the foremost agents of revolution.”
That revolution is here.
Israel crossed the line this spring when the opposition backed military desertion — a fundamentally undemocratic act. The U.S. crossed the line last week when a local prosecutor forced Trump to face a mugshot at the county jail, like a common criminal.
I am hoping to learn, in Israel, whether that revolution can be stopped, and whether we Americans can learn something about restoring the balance in our own political system.
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 new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. 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.
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