No Amount of Prudence Will Appease Opponents of Israel’s Judicial Reform

O n Monday, the Israeli Knesset passed a highly controversial bill stripping the Israeli supreme court of its ability to strike down certain laws on the basis of “reasonableness.” Some background: Because Israel has no written constitution, the Israeli supreme court is not comparable to any other judiciary in the Western world. Its justices are appointed by a nine-member selection committee that includes three current justices, along with Knesset members, cabinet ministers, and members of the Israeli bar association. A seven-vote majority is needed to approve appointments. The justices, then, have an effective veto over any candidate whose judicial philosophy differs from their own. (A unified three-justice opposition is enough to stop any candidate.) And when colleagues arrive on the bench, they are at liberty to apply the comically vague “reasonableness” doctrine to enforce their own policy positions on the country, given that there is no body of constitutional law to be followed. All in all, the system is an embarrassment for a democratic country.

The system is supported by leftists for the simple reason that it produces leftist outcomes. In 2014, for example, the court struck down a law that limited vehicle owners from receiving income-support payments from the National Insurance Institute. The decision reads: “This is an extremely serious violation of the core of the right of someone who, in any case, is at the bottom of the socioeconomic ladder and needs the benefit as the last safety net against starvation and poverty.” Does that sound like a legal argument, or a policy one?

When the plan to overhaul the judiciary was announced, it was met by fierce opposition from the Left, many of whom seemed to admit that reforms were needed but opposed the “extent” of the change. The insincerity of that objection is now obvious. That’s because the law passed on Monday is but a tiny step to curb the court’s power. All it does is limit the use of the reasonableness doctrine. It doesn’t touch the appointment process. It leaves open the possibility that the court could concoct new “doctrines” to achieve its preferred policy outcomes. Nonetheless, leftists — in the United States and in Israel — continue to adopt the same sky-is-falling rhetoric that has dominated their activism. The lesson here is that no matter how carefully Netanyahu and his governing coalition tread, no matter how minor the reforms they adopt, any move they make will draw the fierce ire of the Left.

It’s unfortunate that some continue to deny that flashing reality. Bret Stephens writes at the New York Times:

This is a true disaster for Israel not because the bill is “anti-democratic” — if anything, it is all too democratic, at least in the purely majoritarian sense of the word — but because it risks depriving the country of its most potent weapon: the fierce loyalty of its most productive and civically engaged citizens.

In a way, Stephens is right. The reforms do threaten a deprivation of “fierce loyalty,” but that loyalty is to the system, in which the judiciary chooses policy outcomes based on a doctrine of “reasonableness” concocted in the utopian dreams of supreme court justices. A loyalty that vanishes when small changes are made to a country’s judiciary is hardly loyalty to the state itself.

Stephens continues:

It is the court that guarantees that human, civil, women’s and minority rights are respected and that parliamentary majorities can’t simply do as they please. . . . The point of the legislation isn’t reform, much less consensus. It’s an exercise in raw political power carried out by legislators bent on trying to achieve legal impunity from a court that has tried to hold them to account.

Holding elected officials to account is obviously critical to a functioning democracy. But who will curb the awesome power of the unelected ones? Those who oppose any curbs on the judiciary’s power deserve no credence when they claim that the problem with reform is one of extent. Left-wing opponents to the reforms decry minor reforms and more substantial ones alike; some have claimed to agree that some reform is necessary, but their overheated, hyperbolic rhetoric belies the claim.   

One more Stephens paragraph:

What is true is that the new dividing line in Israel, as in so many other democracies, is no longer between liberals and conservatives. It’s between liberals and illiberals. It’s between those who believe that democracy encompasses a set of norms, values and habits that respect and enforce sharp limits on power and those who will use their majorities to do whatever they please in matters of politics so that they may eventually do whatever they please in matters of law.

This is nonsense. How can one argue for “sharp limits on power” while opposing any tinkering with the runaway power of judges to constrain the actions of elected lawmakers?

As we have seen over the past several months, any effort to bring Israel’s judiciary in line with every functioning Western democracy is met with accusations of “fascism” or “dictatorship.” When such terms are thrown around, how can one debate in good faith? Opposition to reform is in many cases simply a preference for a system that produces outcomes desired by certain political factions.

As we have seen here in the U.S., it’s very painful for leftists when they lose their judicial levers of political power, and their lashing out is an inevitable part of that process. In Israel, the question for the Right is who will make the rules — will it be elected officials or unelected ones? For the Left, the question is different: What system will best produce desired policy outcomes?

At this point, those who believe that objections to judicial reform are principally based on a preference for methodical change are ignoring the glaring evidence. The rest of us see clearly.