Israel‘s Parliament voted Monday 64-0 to pass a key part of the government’s planned judicial reforms, aiming to limit a supreme court that critics say “has more power than nearly any other judiciary in the Western world.”
The votes in favor were from Prime Minister Benjamin Netanyahu’s coalition, with opposition lawmakers walking out of the Knesset. The judicial-reform package has triggered mass protests in the country, but proponents of the legislation say it is being unfairly maligned both within Israel and outside of it.
Justice Minister Yariv Levin called Monday’s events an “extraordinary moment” that would “restore the powers that were taken from the government and the Knesset over many years.”
The bill passed Monday curbs the “reasonableness” standard the court has adopted, which allows it to check government actions, decisions, or policy as unreasonable even when they comport with legal requirements and rely on uncontested statutory authority.
According to Evelyn Gordon, writing in Mosaic Magazine, Israel’s judicial revolution began in the 1980s by abolishing key restrictions on its power to hear cases — namely, standing, or who can petition the court, and justiciability, or what issues fall under the court’s purview. Supreme court president Aharon Barak famously said that “everything is justiciable.”
Gordon explained that the second crucial part of the revolution was the reasonableness standard.
Yonatan Green explained in the Times of Israel that “every conceivable government action – indeed, even the appointment of government ministers or the most senior public servants, perhaps the very definition of governing itself – becomes subject to arbitrary and whimsical judicial oversight, the primary test being whether the presiding judge happens to favor the policy or appointment under review.”
Green added that annulling this doctrine would not affect other traditional and established grounds for judicial review, such as illegality or arbitrariness.
In one example of the standard’s application, the court in Jerusalem, “essentially stripped ministers of the right to appoint officials who share their views by barring the appointment of party colleagues or friends even if they are completely qualified,” explained Gordon. She added that in another case it “forbade the detention of senior commanders in two terrorist organizations as a means of obtaining information about an Israeli soldier missing in action, even though both men were personally involved in his disappearance.”
“Setting policy is the elected government’s core responsibility, and deciding whether a government’s policies are reasonable is the voters’ job,” Gordon argued.
An Israeli group has already filed an appeal of the law to the supreme court.
The judicial reform package also includes other changes that have not yet been finalized. An override clause would target judicial supremacy over legislation in a country that has no written constitution. “Israel remains the only country in the world with judicial power to strike down laws, yet without the textual basis of a written constitution to legitimate, define, and limit such monumental judge-made authority,” explained Green, also pointing to Judge Richard Posner’s criticism that “one is reminded of Napoleon’s taking the crown out of the pope’s hands and putting it on his own head.”
The government acted earlier to pass a non-binding measure to reform the judicial appointments process. The supreme court currently commands a third of the nine-member judicial selection committee and Green argued it holds sway over additional members.
That bill was prepared for final voting and could technically be passed at any time. But it has been suspended for the moment and the government is unlikely to try to pass it before the summer recess, the New York Times reported.
Antonin Scalia Law School professor Eugene Kontorovich, who supports the reforms, suggested the government take a breather before enacting the rest of the package.
After today’s very minor win on judicial reform, the government should not rush headlong into further reform proposals, rather first show the sky is not falling. The opposition should show they can take a loss and move on. As for the Court it can’t be a judge its own case.
— Eugene Kontorovich (@EVKontorovich) July 24, 2023
“The Israeli justices have become a law unto themselves, not the interpreters of laws drafted by the political branches of government,” argued New York University law professors Richard Epstein and Max Raskin in a recent op-ed.
The pair also criticized the protests. “By castigating these rather measured reforms, such as preventing judges from appointing their own successors, the protesters engage in behaviors that they would denounce were the shoe on the other foot,” Epstein and Raskin wrote.
White House press secretary Karine Jean-Pierre said the vote that took place was “unfortunate” in a statement. President Joe Biden has also expressed opposition to the judicial reforms in the past, with Republicans casting this opposition as well as other decisions the administration has taken as part of a desire to undermine Israel.